Niernberg v. Feld

131 Colo. 508, 283 P.2d 640 (1955)

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Nature of the Case

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Facts

The Niernbergs (D) and the Felds (P) entered a contract for the sale of real property. P paid D a deposit; the rest of the contract price was to be paid partially in cash and partially by a note secured by a deed of trust on or before May 5. Payment was to be made or tendered by P by May 1. If it was not, the money already paid by P was to be retained by D as liquidated damages, and both parties would be relieved from further performance on the contract. Prior to May 1, P decided that they could not go through with the contract, and so informed their attorney, who informed D the same day. The parties had a meeting, also prior to May 1, regarding the return of P's deposit. The parties orally agreed that D would retain the deposit while they looked for another buyer and that if they were able to sell the property for the same or a better price, they would return the deposit. However, if D sold the property for less than the contract with P, the difference between the two sale prices would be deducted from the deposit, and the balance returned to P. D later sold the property for more than the price of the contract with P, but refused to return P's deposit, claiming that the meeting never occurred. P sued for a return of the deposit. At trial, the jury returned a verdict in P's favor. D appealed, arguing that the claimed rescission of the contract at the meeting between the parties was subject to the statute of frauds, and required to be in writing; that the agreement was void for lack of consideration; and that the rescission was not binding because it was not made in the presence of all the parties to the original agreement (neither of the wives were at the conference).