Hubby v. Willis Agency, Inc., 17531
| Decision Date | 23 May 1955 |
| Docket Number | No. 17531,17531 |
| Parties | John A. HUBBY and Kate O. Hubby, Plaintiffs in Error, v. WILLIS AGENCY, Inc., a corporation, Defendant in Error. |
| Court | Colorado Supreme Court |
H. T. McGarry, Colorado Springs, for plaintiffs in error.
Robert W. Johnson, Colorado Springs, for defendant in error.
These parties appeared in reverse order in the trial court and are hereinafter referred to as there, or by name.
Willis Agency, Inc., a corporation, brought this action upon a demand promissory note payable to plaintiff executed by defendants Mr. and Mrs. Hubby, which obligation the complaint alleged had not been paid. Defendants, by answer, admitted the execution of the note, but alleged that it was conditionally delivered to plaintiff. In addition, defendants alleged plaintiff 'is not the owner of said promissory note; has no interest therein and is not the real party in interest herein.' It was further alleged that plaintiff, a real estate broker, was acting for Don Price and H. A. Jenkins for the sale of a certain property located on Jupiter Drive in Colorado Springs, Colorado; that defendants were the owners of certain real estate in the Broadmoor section of Colorado Springs, and that on September 11, 1953 defendants signed a contract to purchase the Jupiter Drive property from Price and Jenkins for $35,800, payable in cash thirty days after the date of the agreement, and that at said time 'defendants signed the demand promissory note in the sum of $3,500.00 as set forth in Plaintiff's complaint, as a deposit upon said property and delivered said contract and said note upon the conditions hereinafter set forth.' These conditions, as pleaded, were that defendants did not have $35,800 in cash with which to buy the Jupiter Drive property; that they were unwilling and unable to purchase said property unless defendants sold the Broadmoor property, owned by defendants, or were able to secure a mortgage on their property in the sum of $35,800 and that defendants stated a mortgage of $35,800 'was obtainable on the property owned by defendants and that plaintiff would assist defendants in securing the same;' it was further alleged that defendants were unable to secure a mortgage in the sum of $35,800 upon their property; that plaintiff caused defendants to list their property with plaintiff for sale under an exclusive listing, and that 'plaintiff and defendants were unable to sell the property owned by defendants; and that by reason thereof the contract of September 11, 1953 was abandoned.'
Trial was to the court. The issues were resolved in favor of plaintiff. In its findings the trial court determined plaintiff 'is the named payee and holder of said note'; that defendants had paid nothing thereon and refused payment after demand; that said promissory note 'was executed and unconditionally delivered for a valuable consideration, by defendants to plaintiff and such delivery was without any reservation, condition or restriction whatsoever.' Pursuant to the findings, judgment was entered in favor of plaintiff and against defendants, who bring the cause here by writ of error.
The contract, denominated 'Real Estate Purchase Agreement', acknowledge receipt of the demand promissory note from defendants, as 'earnest money and as part payment on the purchase price' of the Jupiter Driver property; the total purchase price was $35,800 payable as follows: $3,500.00 demand note hereinabove receipted for, and $32,300.00 on date of closing.' It further recited that 'Time is of the essence hereof, and if any payment * * * is not made * * * by the purchaser as herein provided, then this contract shall be void and of no effect, at the seller's option, and both parties are released from all obligations hereunder and all payments made herein shall be retained by the seller as liquidated damages. * * *' This portion of the contract was signed by The Willis Agency. Defendants...
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Popwell v. Abel, 1442
...subject, our sister states have held that the note or check may be sued upon independently of the contract. 10 In Hubby v. Willis Agency, 1955, 131 Colo. 565, 283 P.2d 1080, the Colorado Supreme Court held in an action involving a real estate purchase agreement where a promissory note was g......
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