Hizel v. Howard
| Decision Date | 22 August 1960 |
| Docket Number | No. 18862,18862 |
| Citation | 354 P.2d 611,144 Colo. 15 |
| Parties | Mrs. Carl HIZEL, formerly Murrell Selby Collins, Plaintiff In Error, v. Budd HOWARD and Mary Howard, Individually and doing business as The Arthur Murray Studios, Defendants In Error. |
| Court | Colorado Supreme Court |
Paul F. Goldsmith, Kenneth A. Selby, Denver, for plaintiff in error.
Joseph D. Neff, A. E. Small, Jr., Denver, for defendants in error.
This writ of error in which the parties appear as they did in the trial court, seeks to reverse a judgment of dismissal wherein the court upheld the defense of res judicata upon the following factual situation:
Plaintiff in the year 1950 entered into a prepaid contract with the defendants for a series of dancing lessons and paid the full sum of $3,000 thereon, for which the defendants promised to give her instruction in dancing for a total of 600 hours.
In 1953, after 260 hours of dancing lessons had been used, plaintiff brought suit in the district court. She asked for rescission on the ground that defendants had made material misrepresentations to induce her to enter into the contract and to obtain from her the full contract price or, in the alternative, prayed for damages on the ground of breach of contract. Plaintiff was nonsuited on findings by the court that plaintiff was not entitled to rescind and that she had failed to prove any substantial breach of the contract. The judgment of dismissal was affirmed without written opinion in this court in Collins v. Howard et al., 130 Colo. 272, 274 P.2d 977.
In January, 1955, plaintiff sought to resume the series of lessons which had been interrupted by the suit. On February 25th she received a letter from the defendants acknowledging, by way of review, her payment of $3,000 for 600 hours of instruction, reiterating (what was well established) that she had used 260 hours and that there were 340 hours remaining. After this calculation the letter then informed plaintiff that there was being deducted from the remaining hours of instruction 201 hours ($1,005) for legal fees and court costs 'which your (previous) case in court costs us.' The letter closed with the statement, 'We come to a total of 139 hours remaining.'
In June the plaintiff received another letter--this time from an attorney representing the defendants-- informing her that the dance studio did not owe her any dance lessons at all, that the remaining lessons offered were a sheer 'gratuity' and because ...
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