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Niernberg v. Feld

Supreme Court of Colorado
283 P.2d 640 (1955)


The Niernbergs (defendants) entered into a written agreement to sell real estate to the Felds (plaintiffs). The agreement provided that the Felds’ down payment would be retained as liquidated damages by the Niernbergs in the event the Felds failed to pay the remaining balance of the purchase price on or before a date certain. Prior to the payment deadline, the Felds informed the Niernbergs that they no longer wanted to go through with the purchase. Mr. Feld and Mr. Niernberg met at the office of Niernberg’s attorney at some time prior to the payment deadline and discussed alternate agreements for the disposition of the Felds’ down payment. Mrs. Feld and Mrs. Niernberg did not attend the meeting. Feld asserted that Niernberg had agreed to return the full down payment if Niernberg succeeded in selling the property for more than the purchase price agreed upon by the Felds. If Niernberg sold the property for less than the Felds’ offer, then only the remainder of the difference between the actual selling price and the Felds’ offering price would be refunded to the Felds. Niernberg denied having attended any such meeting or having agreed to any refund of the Felds’ down payment. Niernberg sold the property for more than the Felds’ offer, but refused to return any of the down payment. The Felds filed suit to recover their down payment. At trial, the jury awarded judgment in favor of the Felds for return of the down payment with interest. Niernberg appealed.

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