White v. Greenamyre

• Decision Date: 02 March 1925
• Docket Number: 11046.
• Citation: 77 Colo. 33,234 P. 164
• Parties: WHITE v. GREENAMYRE.
• Court: Colorado Supreme Court

234 P. 164

77 Colo. 33

WHITE v. GREENAMYRE.

No. 11046.

Supreme Court of Colorado

March 2, 1925

Department 3.

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

Suit for specific performance by John R. White against Helen E Greenamyre. Judgment of dismissal, and plaintiff brings error.

Affirmed.

Stow &amp Stover and William K. Lilley, all of Ft. Collins, for plaintiff in error.

Paul W Lee, George H. Shaw, and Wm. A. Bryans, III, all of Ft Collins, for defendant in error.

CAMPBELL, J.

John R White, the owner of town lots with a dwelling house thereon situate in Kimball, Neb., and Mrs. Greenamyre, the owner of farming lands in Larimer county, Colo., on October 28, 1922, entered into a written contract for the exchange thereof. Each of the parties was to furnish and deliver to the other an abstract of title on or before February 1, 1923. Mrs. Greenamyre was given the right to collect all rents from the Nebraska property from November 1, 1922, to be applied, when collected, on the principal and interest of a $2,500 mortgage thereon; some payments of the principal having previously been made. Possession of the farming land was to be given to White March 1, 1923, on which date the appropriate deeds were to be executed and delivered by the parties. The Colorado property had been listed for sale with Hurdle, a real estate agent at Ft. Collins, and when White applied to Hurdle with a view to buying property in Colorado, negotiations were entered into which resulted in this contract of sale; Hurdle acting, in part at least, for both parties. The contract does not state the amount of the incumbrance on the Nebraska property when the contract was made, but it is admitted that the owner, Mr. White, represented it to be not in excess of $1,500. As a matter of fact the indebtedness was then about $2,200. When the abstracts of title were exchanged, February 1, the title of the Nebraska property was found to be defective in several particulars. The defendant, Mrs. Greenamyre, who was them in Boston, executed the appropriate deed for her property and sent the same to her sister, who presented it to the common agent and was ready to carry out the contract on her part on the 1st day of March, 1923, at the time specified in the contract for full performance; but the title of the Nebraska property had not been then perfected, and the amount of the mortgage in excess of $1,500 had not been paid off or reduced. In the latter part of February or the first of March, Mrs. Greenamyre again informed White that she was ready and willing to carry out the contract on her part, and demanded that the defects in the title of the Nebraska property be remedied, and the mortgage reduced to the required amount as a condition to the delivery of her deed. On March 30 she again notified the agent, Hurdle, that unless this mortgage was reduced to $1,500 by the 5th of April the deal would be called off. On the 5th of April, Hurdle, apparently at plaintiff's request, sent a telegram to the defendant, asking that she take White's note for $510, payable in six months, personal security and second mortgage on the purchased Colorado land, which she refused to do. On the same day Mrs. Greenamyre's sister went to Hurdle's office with the deed to the Colorado property, and insisted upon some showing that the mortgage had been reduced to the agreed amount, but no showing was made. Hurdle then tried to induce the sister to accept the plaintiff's personal note as above indicated, which the sister refused. The trial court found that plaintiff's complaint was without equity, and he was not entitled to specific performance, and the action was thereupon dismissed. White brings the case here for review of that judgment.

The...