Opinion
No. 23849.
Decided April 1, 1969.
Action by vendor to recover purchase price from purchaser who had agreed to pay for realty with stamp collection. From granting of summary judgment against purchaser, the purchaser brought error.
Reversed.
1. JUDGMENT — Summary — Lack of Genuine Issue of Fact — Rules. R.C.P. Colo. 56 authorizes the forthwith entry of summary judgment if the pleadings, depositions, and admissions on file, together with the affidavits show that there is no genuine issue as to any material fact.
2. Summary — Error — Realty — Stamp Collection — Price — Vendor — Purchaser — Genuine Issues — Material Facts. In action by vendor against purchaser to recover agreed purchase price subsequent to conveyance of reality where pleadings, deposition and affidavits show clearly that there were genuine issues as to several material facts, namely, time of performance and type of value to be set on stamp collection agreed to be conveyed as consideration for the realty, held, under the circumstances, trial court acted precipitously in granting vendor's motion for summary judgment, as there were genuine issues as to several material facts.
Error to the District Court of Boulder County, Honorable William E. Buck, Judge.
Hunter, Hopkins Wise, Alexander M. Hunter, for plaintiff in error.
No appearance for defendant in error.
By this writ of error Hunter V. Pritchard, hereinafter referred to as the defendant, seeks reversal of a summary judgment entered against him in the amount of $7,500. The defendant contends that the motion for summary judgment filed by James W. Temple, hereinafter referred to as the plaintiff, was improperly granted by the trial court for the reason that there were genuine issues as to several material facts and that the plaintiff was therefore not entitled to judgment as a matter of law. We agree.
In his complaint the plaintiff alleged that he and the defendant on April 22, 1966 entered into an oral contract whereby he agree to convey to the defendant certain real property and the defendant in return agreed to pay plaintiff in the sum of $7,500. Plaintiff then went on to allege that he had conveyed the real property here in question to the defendant but that the defendant had failed to pay him the agreed purchase price for the property, namely, the sum of $7,500.
By answer the defendant averred, among other things, that the "consideration for the land conveyed is not yet due" and that he had not agreed to pay for the land "in cash."
In support of the motion for summary judgment there was filed an affidavit of the plaintiff, and the deposition of the defendant. In opposition thereto the defendant filed an affidavit of his own. From these two affidavits, as well as from the deposition, it becomes clear that the defendant agreed to pay for the land conveyed to him with a stamp collection, and not cash, the plaintiff averring though that the stamps were to be delivered within 3 1/2 months of the date of their contract. Also, according to the plaintiff this stamp collection was to have a cash value of $7,500.
However, according to the defendant, the stamp collection was to have a catalogue value — not a cash value — of $7,500 and a stamp collection having a catalogue value of $7,500 was said to have a cash value of considerably less than $7,500. Furthermore, the defendant in his affidavit declared that "no time was agreed upon for the conveyance of the stamps" and that both he and the plaintiff understood that he would be entitled to a reasonable time to catalogue and deliver the stamps and that as of the time of his affidavit he was prepared to convey to the plaintiff the stamp collection within two months thereafter.
It was in this setting that the trial court granted plaintiff's motion for summary judgment and entered judgment for the plaintiff and against the defendant in the sum of $7,500.
R.C.P. Colo. 56 authorizes the forthwith entry of judgment "if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact . . . ." In our view the pleadings, depositions and affidavits in the instant case show quite clearly that there were genuine issues as to several material facts. Some, but not necessarily all, of the genuine issues of material facts presented by the instant case are: (1) Did the contract between the parties specify the time within which the defendant was required to deliver the stamp collection? (2) If not, was the defendant given a reasonable time to perform? (3) What, under the circumstances, would constitute a reasonable time? (4) Was the stamp collection to have a cash value of $7,500 or only a catalogue value of $7,500? and (5) If the latter, what is the cash value of a stamp collection having a catalogue value of $7,500?
Under the circumstances which have been summarized above, the trial court in our considered view acted precipitously in granting the plaintiff's motion for summary judgment, as there were genuine issues as to several material facts. See Boyd v. Broyles, 163 Colo. 451, 431 P.2d 484 and School District v. Grant, 156 Colo. 328, 399 P.2d 101.
The judgment is reversed and the cause remanded for further proceedings.