Mitten v. Weston

615 P.2d 60

• Court: Colorado Court of Appeals
• Decided: June 5, 1980
• Docket: 78-718
• Status: Published

Opinions

PIERCE, Judge.

Defendant Apple Ridge, Inc., appeals a judgment for plaintiffs. We reverse.

Defendants Weston listed a parcel of land for sale through defendant Apple Ridge, Inc., doing business as Apple Ridge Realty. Plaintiffs subsequently purchased the land; however, after closing they became convinced that the actual size of the parcel was less than had been represented to them by defendants. Plaintiffs brought action against defendants on the grounds of breach of contract and false representations, seeking rescission of the purchase contract and return of their payment of $14,299.96, or an award of damages. There was no cross-claim between the defendants.

As the evidence established that none of the parties were aware of the discrepancy in the description before the sale, the trial court dismissed the claims for false representation and for damages. It then entered judgment rescinding the contract.. In an attempt to make the parties whole and to return to plaintiffs the money they had paid under the contract, the trial court entered judgment against defendants Weston for $5,670.12 plus interest, and against defendant Apple Ridge, Inc., for $7,475 plus interest, the latter amount representing the real estate agency’s commission on the sale. Defendants Weston, who are not parties to this appeal, tendered $7,305.21 to plaintiffs and received a satisfaction of judgment.

The only matter which has been raised before this court on appeal is the propriety of the award against the real estate agent Apple Ridge, Inc. Apple Ridge has raised numerous contentions of error on this issue; however, by virtue of there being no cross-claims or cross-appeals, we find it necessary to address only one. See Caldwell v. Kats, 193 Colo. 384, 567 P.2d 371 (1977).

Generally, a contract can be enforced only against a party to that contract. Barbara’s Lighting Center, Inc. v. Churchill, 35 Colo.App. 439, 540 P.2d 1110 (1975). Here, Apple Ridge was a party to the listing contract, a contract between the defendants; however, Apple Ridge was not a party to the contract between plaintiffs and defendants Weston for the sale of the property. Because Apple Ridge was not a party, no action lies against it for breach of that contract. Radiology Professional Corp. v. Trinidad Area Health Ass’n, Inc., 39 Colo. App. 100, 565 P.2d 952 (1977), aff’d, 195 Colo. 253, 577 P.2d 748 (1978). The claims for false representation having been dismissed, there remained no basis for a judgment against the real estate agent on a contract between the buyers and the sellers.

Nor are the doctrines of quasi contract or unjust enrichment applicable to this case. Here, Apple Ridge received the $7,475 in question pursuant to the terms of an express contract between Apple Ridge and defendants Weston. Because Apple Ridge’s entitlement to the commission is determined by the terms of this express contract, the doctrines of quasi contract or unjust enrichment are inapplicable. See, Brown’s Estate v. Stair, 25 Colo.App. 140, 136 P. 1003 (1913). See also, Klipfel v. Neill, 30 Colo.App. 428, 494 P.2d 115 (1972). While it may be true that Apple Ridge is not entitled to retain the commission under the terms of this listing contract, this issue has never been litigated in the trial court and therefore cannot be considered by this court. County Court v. Ruth, 194 Colo. 352, 575 P.2d 1 (1977).

The judgment entered against the real estate agent is reversed.

VAN CISE, J„ concurs. BERMAN, J., dissents.