Opinion
Vance E. Halverson, Peter B. King, Steamboat Springs, for plaintiff-appellee.
Decker & Miller, P.C., Dennis M. Miller, Denver, for defendant-appellant.
KELLY, Judge.
Brown sued Rennels for the balance of the purchase price due under a contract for the sale of real property. Rennels counterclaimed for liquidated damages under the contract, based on Brown's alleged refusal to subordinate to additional mortgages as required by the agreement. It was uncontroverted that the sale was consummated by the parties' mutual exchange of appropriate documents. After trial to the court, judgment was entered for Brown for $6000 actual damages and $6000 liquidated damages, and Rennels' counterclaim was dismissed.
On appeal, Rennels does not challenge the propriety of an award of damages to Brown for breach of the contract. Rather, he contends that the award of both actual and liquidated damages for the same breach of contract is improper. We agree, and therefore, we reverse in part and affirm in part.
One of the prerequisites to the validity of liquidated damages provisions is that the damages to be anticipated are uncertain in amount or difficult to be proved. See Perino v. Jarvis, 135 Colo. 393, 312 P.2d 108. Damages for failure to pay the full amount of the purchase price are neither uncertain nor difficult to prove. See Grooms v. Rice, 163 Colo. 234, 429 P.2d 298. Hence, liquidated damages are not recoverable in addition to actual damages. See Thach v. Durham, 120 Colo. 253, 208 P.2d 1159; Gillett v. Young, 45 Colo. 562, 101 P. 766.
Brown's argument that he is entitled to damages for breach of contract and damages for conversion of the monies owed him is without merit. Breach of contract will not support an action for conversion. See Byron v. York Investment Co., 133 Colo. 418, 296 P.2d 742.
We do not reach Rennels' contention that the evidence was insufficient to support the trial court's finding that Brown subordinated to an additional first mortgage. Rennels, having failed to pay the full amount of the purchase price, could not demand counter-performance from Brown.
We have considered Brown's other arguments in support of the judgment and find them to be without merit. Accordingly, that portion of the judgment awarding Brown $6000 liquidated damages is reversed, and that portion of the judgment awarding $6000 actual damages, together with interest and costs thereon, is affirmed.
ENOCH and RULAND, JJ., concur.