Kalish v. Brice

• Decision Date: 27 September 1954
• Docket Number: No. 17233,17233
• Citation: 130 Colo. 220,274 P.2d 600
• Parties: Lawrence KALISH, Plaintiff in Error, v. W. Bonner BRICE and H. B. Stroup, Defendants in Error.
• Court: Colorado Supreme Court

Page 600

274 P.2d 600

130 Colo. 220

Lawrence KALISH, Plaintiff in Error, v. W. Bonner BRICE and H. B. Stroup, Defendants in Error.

No. 17233

Supreme Court of Colorado, En Banc.

Sept. 27, 1954.

Rehearing Denied Oct. 18, 1954.

Isaac Mellman, Gerald N. Mellman, Denver, for plaintiff in error.

Bernard J. Seeman, James D. Doyle, Denver, for defendants in error.

HOLLAND, Justice.

April 22, 1950, H. B. Stroup, as owner, and W. Bonner Brice, gave Lawrence Kalish an option to purchase approximately thirty-five acres of land in Arapahoe county for $750 an acre, upon which Kalish paid $1,000. According to the terms of the option, title was to be merchantable in the seller and the seller would deliver a warranty deed on or before May 20, 1950; it further was provided that if the title was not merchantable and the purchaser gave written notice of defects within the time provided for delivery of the deed, and the title was not rendered merchantable within ninety day after such written notice, the option shall be void, of no effect, and both parties released from all obligation, and the payment made thereunder be returned forthwith to purchaser, upon return of the abstract to the seller.

Kalish, the purchaser, found defects in the title, and on May 18, 1950, gave the seller written notice of the defects, which the seller did not remedy or correct within the ninety days, and Kalish demanded return of his deposit of $1,000, which the seller refused.

Kalish filed a complaint against the sellers, Brice and Stroup, in the district court of Arapahoe county on March 13, 1952, in which he alleged facts as above recited and prayed for a return of his deposit. The record is silent as to any showing of service of summons on the defendants, and no appearance made by them, and on January 30, 1953, plaintiff Kalish filed an amended complaint setting up the same facts, sought specific performance of the option, and prayed that the property be conveyed to him. March 3, 1953, defendants filed a motion to dismiss the amended complaint on two grounds: First, that the amended complaint states a new and distinct cause of action from the original complaint; and secondly, that the amended complaint does not state facts sufficient to constitute a cause of action. Upon hearing, the court, March 23, 1953, sustained the motion as to the first paragraph, and thereafter, on the 25th day of May, 1953, entered an order dismissing the action with prejudice.

The record as filed herein affords us but little guildance, and it is not explained as to why defendants did not enter an appearance between March 13, 1952, the date of filing the original complaint, and January 30, 1953, the date of the filing of the amended complaint, if they were served with process; however, according to the record, there was no responsive pleading filed during that period, and rule 15(a) R. C. P., Colo., provides, 'A party may amend his pleading once as a matter of course at any time before a responsive pleading is filed * * *.'

Counsel for defendants in error contend that plaintiff, having elected to disaffirm the option and seek a return of his deposit, that his election of remedy was final and he was precluded from later filing an amended complaint reversing himself in an endeavor to affirm the option and seek specific performance. Counsel for plaintiff confine their argument to the question of the propriety of the court's ruling in granting the first paragraph of the motion to dismiss which was to the effect that the amended complaint states a distinct, new and different cause of action from the original complaint. The original complaint...