A & R Co. v. Union Air Transport, Inc.
| Decision Date | 30 April 1987 |
| Docket Number | No. 85CA0079,85CA0079 |
| Citation | 738 P.2d 73 |
| Parties | A & R COMPANY, Plaintiff-Appellee, v. UNION AIR TRANSPORT, INC., Defendant-Appellant. . II |
| Court | Colorado Court of Appeals |
Morrato, Bieging, Burrus & Colantuno, P.C., Stephen B. Shapiro, I. Thomas Bieging, Englewood, for plaintiff-appellee.
Girsh and Rottman, P.C., Robert B. Rottman, Denver, for defendant-appellant.
In this action to recover rents due under a lease, the defendant, Union Air Transport, Inc., appeals from the judgment finding it liable to the plaintiff, A & R Company. Union Air contends that the trial court erred in finding that part performance removed the oral agreement from the operation of the statute of frauds. We affirm.
Every contract to lease any interest in land for a period longer than one year is void unless the agreement expressing the terms is in writing and "subscribed by the party by whom the lease ... is to be made," § 38-10-108, C.R.S. (1982 Repl.Vol. 16A); however, substantial part performance of the terms of an oral agreement on which the written agreement is based may take the contract from under the statute. Zamboni v. Graham, 104 Colo. 23, 88 P.2d 98 (1939); Knoff v. Grace, 68 Colo. 527, 190 P. 526 (1920).
Part performance consists of performing something required by the contract, such as the payment of rent, plus the taking of possession by the tenant and the installation of trade fixtures or other similar equipment of a type that is indicative of a long-term tenancy. Knoff v. Grace, supra. A party relying on part performance to defeat a defense based on the statute of frauds must show that the partial performance is more consistent with the terms of the contract than with some other arrangement, such as a month-to-month tenancy or a tenancy at will. L.U. Cattle Co. v. Wilson, 714 P.2d 1344 (Colo.App.1986); Knoff v. Grace, supra; D. Dobbs, Remedies § 13.2 (1973).
Mere possession of property is not substantial part performance if possession may be attributed to some arrangement other than the one under the alleged oral agreement. See Von Trotha v. Bamberger, 15 Colo. 1, 24 P. 883 (1890). In many cases where part performance has been allowed to defeat a statute of frauds defense, either a tenant or a putative owner has taken possession of the premises and made extensive improvements or expenditures in preparing to occupy the property in reliance on an oral agreement. See, e.g., Zamboni v. Graham, supra (), and Adcock v. Lieber, 51 Colo. 373, 117 P. 993 (1911) ().
Here, Union Air presented evidence that it had never reached an agreement on the terms of a proposed written lease. Its witnesses testified that Union Air wanted a 24-month lease at $950 per month. They claimed that Union Air did not accept the 36-month lease because A & R refused to insert an escape clause allowing renegotiation...
To continue reading
Request your trial
-
United Int'l Holdings Inc v. Wharf Limited
...to sell it 10% of CNCL stock. Because the issue of partial performance presents factual questions, see A & R Co. v. Union Air Transport, Inc., 738 P.2d 73, 74-75 (Colo. App. 1987), Wharf contends the district court improperly took this issue from the jury and exacerbated its error by failin......
-
Luttgen v. Fischer
...as part performance on the oral purchase agreement, precluding application of the statute of frauds under A & R Co. v. Union Air Transport, Inc., 738 P.2d 73, 74 (Colo.App.1987). Inasmuch as this argument was never presented to the trial court, however, we do not now consider it. See Timm v......
-
Lobato v. Bleidt
...enough to take the contract out of the statute of frauds is also a factual question. See, e.g., A & R Co. v. Union Air Transp., Inc., 738 P.2d 73, 74-75 (Colo. Ct. App. 1987); Ellis Canning Co. v. Bernstein, 348 F. Supp. 1212, 1229 (D. Colo. 1972). The jury was instructed on determining the......
-
Limiting Lender Liability Through the Statute of Frauds
...through use of the writ of assumpsit. 3. See, e.g., CRS §§ 38-10-108 and 38-10-112. 4. See, e.g., A & R Co. v. Union Air Transport, Inc., 738 P.2d 73 (Colo.App. 1987). 5. See, e.g., Tripp v. Shelter Research Inc., 729 P.2d 1024 (Colo.App. 1986). 6. See, e.g., Landes Construction v. Royal Ba......
-
Letters of Intent: Are They Binding?
...See Mestas, supra, note 3 at 164, 169; Cox v. Bertsch, 730 P.2d 889, 890 (Colo.App. 1986). 30. See A&R Co. v. Union Air Transport, Inc., 738 P.2d 73, 74 (Colo.App. 1987), using the classic example of taking possession and making substantial improvements. 31. 530 P.2d 1302 (Colo.App. 1974). ......