Town of Fraser v. Davis, 81CA0864
| Decision Date | 01 April 1982 |
| Docket Number | No. 81CA0864,81CA0864 |
| Citation | 644 P.2d 100 |
| Parties | TOWN OF FRASER, Plaintiff-Appellee, v. Rick DAVIS and Betsy Davis, Defendants-Appellants. . III |
| Court | Colorado Court of Appeals |
Lawrence P. Hartlaub, Jr., Granby, for plaintiff-appellee.
Jonathan T. Belknap, Fraser, for defendants-appellants.
Defendants, Rick Davis and Betsy Davis, appeal the granting of summary judgment to plaintiff, Town of Fraser, on its complaint seeking specific performance of a stipulation entered into by the parties. We affirm in part and reverse in part.
In settlement of a previous civil action, Fraser agreed to provide water service to defendants on the condition that defendants construct a water line, which was to be considered a main, in the alley of the block connecting their property to Fraser's existing water system. When defendants did not construct the main by the agreed upon date, Fraser brought this action to compel performance, and to receive damages for lost revenues, attorney's fees, and court costs.
Defendants' answer admitted the essential allegations of the complaint, but denied that they had refused to install the line. In clarification of this denial, they alleged that when they attempted to lay the line, they discovered a sewer line running diagonally across the alley, which made strict compliance with the agreement "not only impossible by way of being prohibitively expensive," but also created a hazard to the integrity of the sewer line. They further alleged that they sought permission to install the line in the street, as are all the other lines in Fraser, but were refused such permission.
As affirmative defenses, defendants raised the doctrines of clean hands, frustration, a claim of unconstitutional duress, a claim that enforcement would be against public policy, and stated that they were ready and willing to perform the conditions of the stipulation, except for the requirement that the line be in the alley. Defendants also propounded certain interrogatories to plaintiff which were answered by the mayor.
Plaintiffs sought summary judgment and defendants answered by filing an affidavit of Rick Davis which stated:
The trial court found that defendants' response to the motion for summary judgment in the affidavit did "not assert facts from which any finding of 'impossibility' could be made"; nor did it...
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