Trimble v. Collins

• Decision Date: 04 February 1918
• Docket Number: 8956.
• Citation: 64 Colo. 464,172 P. 421
• Court: Colorado Supreme Court
• Parties: TRIMBLE v. COLLINS.

172 P. 421

64 Colo. 464

TRIMBLE v. COLLINS.

No. 8956.

Supreme Court of Colorado

February 4, 1918

Rehearing Denied May 6, 1918.

Department 1. Error to District Court, Larimer County; Neil F. Graham Judge.

Action by Robert E. Trimble against William A. Collins. Judgment for defendant, and plaintiff brings error. Reversed.

Fred W. Stow, Russell W. Fleming, Herman W Seaman, and Fred W. Stover, all of Ft. Collins, for plaintiff in error.

L. R Rhodes, of Ft. Collins, for defendant in error.

TELLER J.

Plaintiff in error brought suit against the defendant in error for rent under a lease in writing; verdict and judgment for defendant. The plaintiff brings the case here for review. The principal ground urged for reversal is that the court erred in giving and in refusing certain instructions.

The lease was executed June 3, 1913, and the term was to begin on June 15th. The lease provided that the plaintiff was to make some changes and improvements in the building leased; but no time was specified for the doing of the work. It was not completed on the 15th, and the defendant declined to take possession and pay rent.

It is urged that the court erred in submitting to the jury in instruction No. 2 a question as to the construction of the lease. The instruction reads:

'If you find that by the terms of the contract it was made the duty of the plaintiff to complete the improvements and repairs on the said building prior to the 15th day of June, 1913, his failure to complete said improvements and repairs prior to said time will defeat his right to recovery in this case.'

The giving of this instruction was error. It is the province of the court to construe a contract, and of the jury to determine whether or not the facts proved show a compliance with the contract.

By instruction 6 the court instructed the jury that, if there was no time fixed for making the improvements, then they should have been completed by June 15th. This determines a question which by instruction 2 was left to the jury, and is bad because likely to be confusing. Not only that, but it is not a correct construction of the lease. There are no words used from which it may fairly be inferred that the making of the improvements was a condition the nonperformance of which would defeat the leasehold estate.

To operate as a condition precedent the words used must import that the vesting or the continuance of the estate depends upon...