Opinion
Rehearing Denied July 30, 1974.
Page 150
Clark, Oates, Austin & McGrath, J. Nicholas McGrath, Jr., Aspen, for plaintiffs-appellants.
Delaney & Balcomb, Robert Delaney, Glenwood Springs, for defendants-appellees.
COYTE, Judge.
Plaintiffs appeal from a judgment dismissing their action for specific performance of an option contract. We reverse.
Plaintiffs purchased Prospector Lodge, described as Lots A, B, C, and D of Block 82, City and Townsite of Aspen, from defendants. The contract provided that plaintiffs would pay part of the purchase price in cash and the balance of the purchase price would be evidenced by an installment note secured by deed of trust on the property purchased. The purchase agreement also contained a provision authorizing plaintiffs to exercise an option to purchase adjoining lots, which option provision provided as follows:
OPTION TO PURCHASE
'9. For a period ending on the third anniversary of closing hereunder, provided Buyers are not then in default under the aforementioned deed of trust, Buyers shall have the right and option to purchase from Sellers, Lots E, F, and G, Block 82, in the city and townsite of Aspen, County of Pitkin, State of Colorado, for the purchase price of $60,000.00, payable as follows:
(a) $17,400.00 shall be paid at closing (or at the election of Buyers, the entire purchase price shall be paid at closing): and
(b) The balance of $42,600.00 shall be paid in equal semi-annual installments on the same dates as provided in the promissory note mentioned in paragraph 1(d) hereof, which installments shall be in such amounts as shall be necessary to fully pay said balance and accrued interest thereon concurrently with full payment of the indebtedness evidenced by said promissory note.
(c) The deferred balance of said purchase price referred to in subparagraph 9(b) above shall be evidenced by Buyers' promissory note in said amount, bearing interest at the rate of 7% Per annum, and shall be secured by a deed of trust upon said lots E, F, and G, Block 82. Each of the aforementioned promissory notes shall be deemed to be secure by both of the aforementioned deeds of trust and default in payment of either shall constitute a default under the other, and the entire seven lots herein described shall be deemed to be security for all of said indebtedness.'
Plaintiffs sought to exercise the option and tendered the full option price. Defendants refused to convey the property described in the option to plaintiffs unless plaintiffs would simultaneously execute and deliver to defendants a deed of trust giving the three lots being acquired as additional security for the note which defendants held on the lots originally purchased. Plaintiffs refused to sign the deed of trust and filed this suit seeking specific performance of the option agreement. After trial to the court on stipulated facts, the court held:
'In the Court's view, the correct construction of the Agreement is that the plaintiffs are required by the terms of the option to subject Lots E, F, and G to a lien securing the $190,000 note notwithstanding their willingness to pay cash for the option parcel. The Agreement is not ambiguous on this point. Plaintiffs have not been willing to subject Lots E, F, and G to such lien, and accordingly have established no right to relief.'
On appeal, plaintiffs contend that the requirement of an additional deed of trust is applicable only upon the express contingency that the option purchase is made by means of a down payment and a promissory note for the deferred balance of the purchase price.
The questions raised may be determined by consideration of the stipulated facts and by the construction of a specific written instrument complete in its terms. We, therefore, are not bound by the determination of the trial court and may resolve the matter on review. Sentinel Acceptance Corp. v. Colgate, 162 Colo. 64, 424 P.2d 380.
In construing the terms of the option agreement, we are bound by the principles that we must enforce the contract as written and that we are not at liberty to rewrite the agreement for the parties. Helmericks v. Hotter, 30 Colo.App. 242, 492 P.2d 85. The mere fact that there is a difference of opinion between the parties as to the interpretation of an instrument does not of itself create an ambiguity. Brunton v. International Trust Co., 114 Colo. 298, 164 P.2d 472.
Paragraphs 9 and 9(a) provide the method of exercising the option and the manner of making payment. Paragraph 9(b) provides for the payment of the balance of $42,600 if the full option price is not paid in cash, and paragraph 9(c) provides for the execution of a note for the deferred balance and the security to be given to secure the payment of that note.
In regard to the disputed issue, we find the option agreement to be without the slightest ambiguity. Its meaning is clear that paragraphs 9(b) and (c) are totally inoperative if the full option price is paid in cash at closing. Thus, plaintiffs are not required to execute a deed of trust in order to meet the terms of the option contract.
Judgment is reversed and cause remanded with directions to enter judgment awarding plaintiffs appropriate relief.
PIERCE and SMITH, JJ., concur.