McDermott v. Lindquist

• Decision Date: 03 March 1919
• Docket Number: 9327.
• Citation: 66 Colo. 88,179 P. 147
• Parties: McDERMOTT v. LINDQUIST.
• Court: Colorado Supreme Court

179 P. 147

66 Colo. 88

McDERMOTT v. LINDQUIST.

No. 9327.

Supreme Court of Colorado

March 3, 1919

Error to District Court, City and County of Denver; J. E. Rizer Judge.

Action by George L. McDermott against Charlotte M. Lindquist executrix of Carl M. Lindquist, deceased. Decree for defendant, and plaintiff brings error. Affirmed.

John T Bottom, of Denver, for plaintiff in error.

Hindry Friedman & Brewster, of Denver, for defendant in error.

BAILEY J.

This suit was brought to compel specific performance of an alleged contract to sell certain real property belonging to an estate of which defendant was executrix. Defendant denied liability under the contract, and set up a counterclaim for $500.00 and interest. Findings and decree were for defendant, and plaintiff brings the cause here for review on writ of error.

The property in question was part of the estate left by the husband of defendant, and the contract was alleged to have been made with defendant in her capacity as executrix. It appears that the original agreement for the sale of the property was made with the son of defendant, who received a deposit of $10.00 on the purchase price. The plaintiff later gave defendant a check for $500.00, as part payment, which check was later returned to him and the contract repudiated by her. Plaintiff had collected rents from the property amounting to $500.00 and this is the basis of defendant's counterclaim for that amount.

According to the agreement, the purchase price of the property was to be $5,000.00. There was testimony tending to show that its real value was from $7,500.00 to $10,000.00, and that plaintiff himself had, shortly before he entered into the contract in question, offered $7,500.00 and then $8,500.00 for the land. Its actual value was in sharp dispute, as was the question whether the contract of sale as made with the son of defendant was ever ratified by defendant herself. It is claimed by defendant that at the time or shortly before she received the $500.00 check from the defendant he misrepresented the physical condition and the value of the property to her in order to induce her to go forward with the transaction; that she was unaccustomed to dealing in land, knew nothing of business, and that as soon as she discovered the facts she returned the check and refused to make the sale.

It is undisputed that the property yields in rentals an annual income of twenty-four per cent. on the contract price. There was no satisfactory showing made that there was any great likelihood of a material decrease in this amount of income. While it is true, as urged by plaintiff, that mere inadequacy of consideration is not of itself sufficient to prevent specific performance, it is equally true that plaintiff must not only show a legel right to have the contract enforced but must also show that such enforcement will work no injustice to defendant. This is a matter to be determined from the evidence. The controlling questions were all of fact. As the trial was to the court,...