Perino v. Jarvis, 17893
| Decision Date | 10 June 1957 |
| Docket Number | No. 17893,17893 |
| Citation | 312 P.2d 108,135 Colo. 393 |
| Parties | Joe PERINO, Plaintiff in Error, v. J. W. JARVIS, d/b/a Jarvis Real Estate and Livestock Exchange, Defendant In Error. |
| Court | Colorado Supreme Court |
Emigh & Emigh, Durango, for plaintiff in error.
Perkins & Cobb, Durango, for defendant in error.
Trial in this cause was to the court, and the parties appear here as in the trial court, Joe Perino, plaintiff, and J. W. Jarvis, defendant.
The action was by plaintiff to recover $1,000 paid to defendant, a real estate broker, in connection with the attempted purchase of a beer business in Arizona. The agreement between the parties was oral, and it is nowhere contended that there was any provision or understanding for the retention of the $1,000 as liquidated damages.
A portion of the pleadings are controlling to the issues here. Plaintiff in his complaint alleges:
'* * * Plaintiff to deliver to defendant the sum of $1000.00 and it was orally agreed between plaintiff and defendant that said sum would be held by the defendant until the contract had been consummated between the plaintiff and one J. F. Moore, at which time said $1000.00 would be delivered to J. F. Moore as part of the purchase price. * * *' (Emphasis supplied.)
To this allegation the defendant entered his general denial, but did not affirmatively assert any agreement or any right in him to retain the $1,000. It developed at the trial that he kept $500 and paid $500 over to Moore. Defendant did not counter claim for the $1,000 or any part thereof. Moore, the principal, for whom the defendant was acting, was not a party to the action, did not appear at the trial and has never asserted any claim for breach of the contract. The trial court in its conclusions of law stated, 'as to the ultimate disposition of the sum of $1,000.00, the Court is without jurisdiction to determine as J. F. Moore, an indispensible party to such determination is not before the Court.'
Plaintiff and defendant were the only witnesses who testified at the trial. A search of the record reveals without dispute that the deal between plaintiff and defendant's principal was never consummated. Defendant's principal was unable to effect a transfer of his liquor license in the state of Arizona, and plaintiff, unable to obtain the license, could not operate the business. Nowhere in his testimony did defendant Jarvis claim any agreement entitling him to retain the $1,000 or any part thereof. There was no testimony by Jarvis that he had sustained any damages by reason of the failure of the deal to be consummated, or that he was entitled to any damages, liquidated or otherwise. On such record the trial court's conclusion of law that it was without jurisdiction to determine the ultimate disposition of the $1,000 involved was error. In the absence of any showing by the defendant that he was entitled to the same, the $1,000 belonged to the plaintiff.
The only evidence of defendant Jarvis remotely touching his contention that he was entitled to keep the $1,000 is in the following excerpts of his testimony appearing in the transcript:
'Q. All right. You may state what he [plaintiff] said to you in that call. A. He said, 'Irvin, the deal doesn't look as good as it did and I'm not going through with it.' And I said, 'Well, Joe, you will lose your down payment if you don't go through with it.'
'Q. What did he say to that? A. Well,--(pause)
'Q. Did you say he would lose the down payment? A. Yes.
'Q. What did he say? A. 'I realize that.'
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It will be noted that in the testimony quoted, the essential elements of a contract for the retention of a sum paid as liquidated damages are lacking. The elements are:
'* * * that the damages to be anticipated are uncertain in amount or difficult to be proved * * *; that the parties intended to liquidate them in advance * * *; and that...
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Powder Horn Constructors, Inc. v. City of Florence
...736 P.2d 403 (Colo.1987); O'Hara Group Denver, Ltd. v. Marcor Hous. Sys., Inc., 197 Colo. 530, 595 P.2d 679 (1979); Perino v. Jarvis, 135 Colo. 393, 312 P.2d 108 (1957). An obligation created bybond was to establish a liquidated damages sum. 11 Construing the bond documents together, as we ......
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Stortroen v. Beneficial Finance Co. of Colorado
...is under obligation to return to the buyer the full amount of the deposit or down payment received from the buyer. Perino v. Jarvis, 135 Colo. 393, 312 P.2d 108 (1957); Victor M. Cox & Co. v. Borstadt, 49 Colo. 83, 111 P. 64 Also, although some of the ostensible indicia of an agency relatio......
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General Ins. Co. of America v. City of Colorado Springs, 80SC139
...advance of the contemplated performance, nor of the other elements essential to a contract for liquidated damages. See Perino v. Jarvis, 135 Colo. 393, 312 P.2d 108 (1957); Turck v. Marshall Silver Mining Co., 8 Colo. 113, 5 P. 838 (1884); Moore v. Kline, 26 Colo.App. 334, 143 P. 262 The re......
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...Thus, the only the element contested here is the parties' intent to liquidate damages.¶ 17 Relying partly on Perino v. Jarvis, 135 Colo. 393, 312 P.2d 108 (1957), as well as on cases from other states, plaintiffs argue that the presence of an option to choose actual damages negates the requ......