Colorado § 38-10-110 - Courts may enforce specific performance.

§ 38-10-110. Courts may enforce specific performance.

Nothing in this article shall be construed to abridge the powers of courts of equity to compel the specific performance of agreements in cases of part performance of such agreement.

Source: R.S. p. 339, § 10. G.L. § 1260. G.S. § 1519. R.S. 08: § 2664. C.L. § 5109. CSA: C. 71, § 10. CRS 53: § 59-1-10. C.R.S. 1963: § 59-1-10.

ANNOTATION

I. General Consideration.

II. Specific Performance.

III. Part Performance.

I. GENERAL CONSIDERATION.

Law reviews. For article, "Part Performance and the Statute of Frauds in Colorado", see 2 Rocky Mt. L. Rev. 209 (1930). For article, "The Remedy of Specific Performance in Colorado Contracts", Part I, see 8 Rocky Mt. L. Rev. 15 (1935); Part II, see 8 Rocky Mt. L. Rev. 106 (1936).

Applied in Foster v. Caffey, 71 Colo. 171, 204 P. 900 (1922); Sackett v. Rodeck, 75 Colo. 425, 226 P. 295 (1924); Thornton v. Schobe, 79 Colo. 25, 243 P. 617 (1925); Moschetti v. Santarelli, 82 Colo. 346, 259 P. 515 (1927); Jutten v. Deeble, 88 Colo. 301, 295 P. 496 (1931); French v. Mitchell, 92 Colo. 532, 22 P.2d 644 (1933); Boyd v. McElroy, 105 Colo. 527, 100 P.2d 624 (1940); Poznik v. Urton & Co., 30 Colo. App. 475, 496 P.2d 1073 (1972).

II. SPECIFIC PERFORMANCE.

Specific performance enforceable for part performance. Specific performance of an oral contract will be enforced in favor of one who has partly performed it. Van Trotha v. Bamberger, 15 Colo. 1, 24 P. 883 (1890); Knoff v. Grace, 68 Colo. 527, 190 P. 526 (1920).

Essential contract terms must be established to justify specific performance of parole contract. In order to justify the specific performance of a parol contract for the sale of land on the ground of part performance, it is necessary that all the essential terms of the contract must first be established by competent evidence and shown to be definite, certain, clear, and unambiguous. Mestas v. Martini, 113 Colo. 108, 155 P.2d 161 (1944).

Where the purchaser of lands has partly performed under a verbal contract, he can recover for what he has done in pursuance of the oral agreement where the vendor insists upon the statute of frauds and refuses to perform. Colo. Lumber, Land, & Imp. Co. v. Dustin, 38 Colo. 398, 87 P. 1142 (1906); Drier v. Sherwood, 77 Colo. 539, 238 P. 38 (1925).

Sufficient consideration required for enforceability of agreement. An agreement, whether within or without the statute of frauds, must be founded upon a sufficient consideration before a court of equity will enforce it. Beulah Marble Co. v. Mattice, 22 Colo. 547, 45 P. 432 (1896).

Cause of performance other than contract alleged insufficient. What is fairly referable to some cause other than the contract as alleged will not be regarded as sufficient part performance to justify a decree of specific performance. Von Trotha v. Bamberger, 15 Colo. 1, 24 P. 883 (1890); Knoff v. Grace, 68 Colo. 527, 190 P. 526 (1920).

Requisites for rescission of oral contract for land purchase. Where a party has rendered services, or paid money, in consideration of an oral contract for the purchase of land, he cannot rescind such contract and recover for such services, or the money paid, unless the other party insists upon the statute of frauds, and refuses to perform it on his part. Colo. Lumber, Land, & Imp. Co. v. Dustin, 38 Colo. 398, 87 P. 1142 (1906).

Evidence of parol contract inadmissible where written contract alleged. In an action for specific performance of a contract to convey land, where the complaint alleges a written contract, evidence of a parol contract taken out of the statute of frauds by part performance is inadmissible to support the action. People's Mining & Milling Co. v. Central Consol. Mines Corp., 20 Colo. App. 561, 80 P. 479 (1905).

A trial court has discretion to grant the equitable relief of specific performance while the jury concurrently deliberates on the award of damages in cases where the damages are in no way contingent upon the trial court's equity decision. Soneff v. Harlan, 712 P.2d 1084 (Colo. App. 1985).

III. PART PERFORMANCE.

Part performance removes contract from bar of statute of frauds. Part performance of a contract removes it from the bar of the statute of frauds. Ridgeway v. Pope, 163 Colo. 160, 430 P.2d 77 (1967).

Acts of part performance must be pursuant to verbal contract. Acts of part performance, such as will furnish a foundation for enforcing a verbal contract respecting land otherwise void under the statute of frauds, must be such as are done in pursuance, or according to the terms, of the contract, and which in some manner affect or change the relation of the parties in respect to the property whereby one of the parties would be defrauded if the contract were not enforced. Von Trotha v. Bamberger, 15 Colo. 1, 24 P. 883 (1890).

Absent agreement, no acts of part performance would exist. The part performance, which will bring a contract within the provisions of this section, must consist of an act or of acts which it clearly appears the performing party would not have done in the absence of the agreement or without a direct view to its performance. Horton v. Stegmyer, 175 F. 756, 20 Ann. Cas. 1134 (8th Cir. 1913); Brown v. Johanson, 69 Colo. 400, 194 P. 943 (1920).

Money expended for labor and building materials constitute part performance. Where persons expended from $1,200 to $1,500 in labor and materials in building their home on another's land in reliance on owner's consent, it is clearly apparent that there was sufficient part performance to overcome the defense of the statute of frauds. Zamboni v. Graham, 104 Colo. 23, 88 P.2d 98 (1939); Hill v. Chambers, 136 Colo. 129, 314 P.2d 707 (1957).

Actual possession and making improvements constitute sufficient part performance. The most important acts which constitute a sufficient part performance to authorize courts of equity to decree specific performance are actual possession, and the making of permanent and valuable improvements. Hunt v. Hayt, 10 Colo. 278, 15 P. 410 (1887).

Where the plaintiff solicited defendant to quit his ranch, move to town, take possession of, furnish, and conduct a hotel on certain premises, promising that if he would do so, he, plaintiff, would execute to him a lease of the hotel at a specified rent for a specified term of years, and the defendant complied with this request, removed from his ranch, assumed possession of, and furnished, the hotel, and paid rentals monthly for several months, such acts constitute a sufficient part performance to entitle defendant to specific performance of the contract lease. Adcock v. Lieber, 51 Colo. 373, 117 P. 993 (1911).

Mere possession will not be deemed part performance sufficient to justify such relief when it may fairly be referable to some other cause than the execution of the contract. Von Trotha v. Bamberger, 15 Colo. 1, 24 P. 883 (1890).

Plaintiff has burden of proof. In an action to compel defendant to execute a written lease to premises for a term of two years, the burden of proof was upon plaintiff to establish by a preponderance of the evidence that he and the defendant made an oral contract for a written lease of the premises for a period of two years and, that in reliance upon this contract, he had entered into possession and partly performed it. Kiter v. Owen, 115 Colo. 7, 168 P.2d 254 (1946).