Newhouser v. Sancetta, 21427
| Decision Date | 01 June 1965 |
| Docket Number | No. 21427,21427 |
| Citation | 402 P.2d 613,157 Colo. 353 |
| Parties | R. A. NEWHOUSER, d/b/a Wheat Ridge Realty Co., Plaintiff in Error, v. Marion SANCETTA, Defendant in Error. |
| Court | Colorado Supreme Court |
Holley & Boatright, Michael C. Villano, Wheat Ridge, for plaintiff in error.
No appearance for defendant in error.
The plaintiff in error, R. A. Newhouser, doing business as the Wheat Ridge Realty Co., was the plaintiff in the trial court, and the defendant in error, Marion Sancetta, was the defendant. Newhouser brings writ of error from the trial court's dismissal of the action at the close of his evidence.
The undisputed evidence showed that on May 31, 1962, the defendant, Sancetta, signed a 'receipt and option' contract to purchase residence property located in Golden, Colorado. At that time, Sancetta gave a $1000 check as a down payment.
The contract provided, in part, that:
'* * * if any payment or other condition hereof is not made, tendered or performed by purchaser as herein provided, then this contract shall be void and of no effect, and both parties hereto released from all obligations hereunder, and all payments made hereon shall be retained by the undersigned agent as liquidated damages. * * *' The contract also provided that an abstract of title or title insurance would be furnished to Sancetta by the seller on or before June 5, 1962, and that closing would take place on or before June 10, 1962.
The parties set June 6 as the closing date. On June 5, Newhouser was notified by Sancetta's bank that Sancetta's account did not contain sufficient funds to pay the $1000 check. Newhouser called Sancetta to advise him of this, and Sancetta stated that he would bring a certified check to the closing on June 6. However, he failed to appear at the appointed time and place of the closing.
On the evening of June 6, Sancetta promised to have the funds and to close the transaction at noon the next day, June 7. Again, he failed to appear. That night, Newhouser, Sancetta and the owners of the property all met at an attorney's office. Sancetta informed them that he would not be able to complete the purchase because he could not raise the money. Sancetta had, however, actually occupied the house for several days and then moved.
This action was commenced to recover the $1000 which Sancetta had obligated himself to pay and which, under the contract, was to be retained as liquidated damages in the event of default by Sancetta. At the trial the only material conflict in the evidence concerned the title insurance. Newhouser testified that he received the title insurance commitment from Title Guaranty Co. on June 5. When he called Sancetta about the check on that day, he told Sancetta that the commitment had been issued. He testified that when he assured Sancetta that the record showed only a first mortgage, Sancetta was satisfied and did not request him to bring the title policy to the closing. Sancetta, on the other hand, testified only that he did not recall any conversations with Newhouser about the title insurance.
At the close of the plaintiff's case, the trial court, on its own...
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Jones v. Dickens, 9606
...to tender marketable title. These acts constituted a waiver of the defects in the title as the trial court found. See Newhouser v. Sancetta, 157 Colo. 353, 402 P.2d 613. Appellant-purchasers next urge that the promissory notes executed as down payments are unenforceable since they represent......
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Harris v. Hanson, 89CA2121
...them on appeal, Page v. Clark, supra, and thus, plaintiff was not relieved from the provisions of the contract. See Newhouser v. Sancetta, 157 Colo. 353, 402 P.2d 613 (1965). Finally, we reject plaintiff's assertion that defendants failed to provide marketable title because the legal descri......
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Chapter 17 - § 17.7 • TERMINATION AND BREACH OF CONTRACT
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