Scott v. Fox Bros. Enterprises, Inc., 82CA0252

• Decision Date: 07 July 1983
• Docket Number: No. 82CA0252,82CA0252
• Citation: 667 P.2d 773
• Parties: Jack SCOTT, Mary Scott and Steve Gragg, Plaintiffs-Appellees and Cross-Appellants, v. FOX BROTHERS ENTERPRISES, INC., Defendant-Appellant and Cross-Appellee. . II
• Court: Colorado Court of Appeals

Page 773

667 P.2d 773

Jack SCOTT, Mary Scott and Steve Gragg, Plaintiffs-Appellees and Cross-Appellants, v. FOX BROTHERS ENTERPRISES, INC., Defendant-Appellant and Cross-Appellee.

No. 82CA0252.

Colorado Court of Appeals Div. II.

July 7, 1983.

S. Macon Cowles, Steamboat Springs, for plaintiffs-appellees and cross-appellants.

Robert H. Gleason, Steamboat Springs, for defendant-appellant and cross-appellee.

SMITH, Judge.

Defendant, Fox Brothers Enterprises, Inc. (Fox Brothers), appeals from a decree entered in favor of plaintiffs, Jack Scott, Mary Scott, and Steve Gragg (the Scotts). The decree required Fox Brothers to render specific performance of a contract to sell real property. We affirm.

The facts in this case are not in dispute. A "Receipt and Option" agreement was entered into wherein for the sum of $20,000 Fox Brothers agreed to convey to one Clayton Canfield Lot 23 together with a one year option to purchase Lot 24 in a subdivision known as Fox Estates. The agreement contained no prohibitions, restrictions, or limitations against assignments but did contain general language making it enforceable against the heirs, successors, and assigns of the respective parties.

Canfield paid the $20,000 and took title to Lot 23 and the option to Lot 24. Canfield thereafter assigned his option rights in Lot 24 to the Scotts. Prior to its expiration date, the Scotts gave notice of their intent to exercise the option to purchase Lot 24, and tendered certified funds in the amount of $5,800 as required by the agreement together with a note and deed of trust executed by the Scotts in the principal sum of $14,200 bearing interest at 9 1/2% per annum, and containing the other terms required by the option agreement.

Fox Brothers refused to convey the property to the Scotts. It maintained that it was not required to convey unless the original optionee, Canfield, signed the note, thus obligating himself for the balance of the purchase price of lot 24. Canfield refused to join in the execution of the note or deed of trust either as obligor or guarantor. The Scotts then brought suit for specific performance.

I.

Fox Brothers contend that, as a matter of law, the contract was not assignable. We disagree.

The contract provided in applicable part as follows:

"Price to include: The land as it exists (Lot 23) together with an option to purchase Lot 24, Fox Estates, at any time within the twelve months following the closing date for the purchase price of $20,000 payable as follows:

$5,800 down; the balance to be amortized over five years at 9 1/2% interest and paid in monthly installments of $298.22 over a three-year period beginning on the date of exercise of the option. At the end of the three year period, a balloon payment shall be made consisting of the outstanding principal balance together with interest accrued as of the date of payoff."

Fox Brothers argues that, absent language or provisions in the contract establishing otherwise, it should be presumed that the contract is personal in nature and, therefore, unassignable. We reject this concept.

Generally, absent an express provision to the contrary, executory contracts are assignable unless they involve a matter of personal trust or confidence or are for personal services. Matson v. White, 122 Colo. 79, 220 P.2d 864 (1950). And, while there appears to be no Colorado case discussing the application of this rule to options to purchase real estate, cases from other jurisdictions expressly apply this rule to such...