Helmericks v. Hotter, s. 71--256
| Decision Date | 23 November 1971 |
| Docket Number | 24422,Nos. 71--256,s. 71--256 |
| Citation | 492 P.2d 85,30 Colo.App. 242 |
| Parties | Clarence J. HELMERICKS, Jr., et al., Plaintiffs in Error, v. Joseph A. HOTTER and Alois F. Hotter, Defendants in Error. . II |
| Court | Colorado Court of Appeals |
Winner, Berge, Martin & Clark, Denver, Parga, Dyer & Buck, Cortez, for plaintiffs in error.
Hamilton & Hamilton, Durango, for defendants in error.
This case was transferred from the Supreme Court pursuant to statute.
Clarence J. Helmericks, Jr., Reece Dunaway, and the Helmericks Corporation (hereinafter referred to as ('Optionees') brought this action against Joseph and Alois Hotter ('Optionors') to enforce the continuation of certain extension provisions relating to an option contract for the purchase of land. Trial was to the court.
The subject option extension contract was preceded by an agreement dated October 16, 1962. In the 1962 contract, the optionors agreed to sell optionees a certain tract of land, and also granted the optionees an option to purchase a second tract. The option to purchase the second tract was to be effective until October 16, 1967. A second contract was executed December 16, 1966, and it is this contract which is the subject of this appeal. In the second contract, the parties expressly agreed that the optionees were 'given and granted to and until December 15, 1970 within which to exercise' the 1962 option as modified. In exchange for such extension of their option rights, the optionees agreed as follows:
'Second parties hereto do hereby expressly agree to pay to first parties the sum of One Thousand Dollars ($1,000.00) on or before December 15, 1967, and a further sum of One Thousand Dollars ($1,000.00) on or before December 15, 1968, and a further sum of One Thousand Dollars ($1,000.00) on or before December 15, 1969 as consideration for the extension of the option * * *.'
The first payment was properly paid. The optionees failed to make the second payment by the due date of December 15, 1968, but tendered both the second and third payments within sixty days of that date. Both of these payments remain within the registry of the trial court. Because the second payment was not paid when due, the optionors declared the option agreement terminated.
After consideration of the agreements involved and the above events, the trial court entered judgment for optionors on the basis that optionees' failure to pay the second of three payments referred to in the option extension contract on the precise day when due constituted (1) a substantial breach of the agreement, thereby permitting rescission by the optionors, and (2) a failure to meet a condition precedent to the optionors' obligation to extend the option beyond the first of the three yearly terms provided...
To continue reading
Request your trial
-
Slifer v. Wheeler and Lewis
...entirety must be enforced as written. Fuller & Co. v. Mountain States Investment Builders, Colo.App., 546 P.2d 977; Helmericks v. Hotter, 30 Colo.App. 242, 492 P.2d 85. If the language is unclear, or subject to conflicting interpretation, then the court must give effect to the intention of ......
-
Fenimore v. Stauder
...of this court to apply these rules on review of this case. Stephenson v. Stephenson, 134 Colo. 96, 299 P.2d 1095; Helmericks v. Hotter, 30 Colo.App. 242, 492 P.2d 85. We conclude that the proper application of these rules of law to the contract before us saves this contract from being fatal......
-
Collins v. Shanahan
...written instruments is an issue of law, and this court is therefore not bound by the lower court's conclusions. See Helmericks v. Hotter, 30 Colo.App. 242, 492 P.2d 85. A lease, like any other contract, is to be construed according to the general rules of construction of written instruments......
-
Board of County Com'rs of Adams County v. Berkeley Village
...court's findings and conclusions thereon. Meier v. Denver U. S. National Bank, 164 Colo. 25, 431 P.2d 1019 (1967); Helmericks v. Hotter, 30 Colo.App. 242, 492 P.2d 85 (1971). The evidence is undisputed that from May 2, 1972, until June 12, 1973, the partnership operated under the trade name......
-
Chapter 17 - § 17.4 • OPTIONS
...upon failure to make payment upon purchase price); Rubber, Inc. v. Jenkins, 570 P.2d 1317 (Colo. App. 1977). But see Helmericks v. Hotter, 492 P.2d 85 (Colo. App. 1971) (failure to make option payment merely gives optionor action for amount due).[108] Karakehian v. Boyer, 900 P.2d 1273 (Col......
-
Chapter 25 - § 25.7 • DRAFTING CONSIDERATIONS
...revealed by a reasonable inquiry, including the lessee's right of first refusal to purchase the property).[31] See Helmericks v. Hotter, 492 P.2d 85 (Colo. App. 1971) (the grant of an option in 1966 to purchase "to and until December 15, 1970" (with the consideration being the payment of $1......
-
Chapter 25 - § 25.5 • OPTION OR RIGHT TO PURCHASE
...Building in Denver granted to a ground lessee and owner of the building on the land was properly assigned).[12] See Helmericks v. Hotter, 492 P.2d 85 (Colo. App. 1971) (the grant of an option in 1966 to purchase "to and until December 15, 1970" (with the consideration being the payment of $......