## Facts

- Philip and Melba Niernberg owned certain real estate and entered into a written “Receipt and Option” agreement to sell it to Nathan B. and Esther Feld for $27,000.
- The Felds paid a $1,500 deposit. The agreement required the balance to be paid by a date certain and stated that if the Felds failed to pay or tender the balance as required, the deposit would be retained by the Niernbergs as liquidated damages, and both sides would be released from further obligations.
- Before the payment deadline, the Felds decided they did not want to complete the purchase and communicated that decision.
- Mr. Feld and Mr. Niernberg met at the office of Niernberg’s attorney before the payment deadline to discuss what would happen to the $1,500 deposit; neither Mrs. Feld nor Mrs. Niernberg attended.
- Feld testified that the parties orally agreed to depart from the written liquidated-damages term: the Niernbergs could keep the deposit while attempting to resell the property, and if they resold for more than the Feld contract price the full deposit would be returned; if they resold for less, the price difference could be taken from the deposit and any remainder returned.
- Niernberg denied that he attended such a meeting or agreed to refund any part of the deposit.
- The Niernbergs later sold the property for more than the Feld contract price but refused to return the deposit.
- The Felds sued to recover the $1,500 deposit plus interest. A jury returned a verdict for the Felds, and judgment entered accordingly. Philip Niernberg appealed.

## Issues

1. Whether a written, executory contract for the sale of land may be rescinded or altered by a later oral agreement, or whether the statute of frauds requires a writing.
2. Whether the claimed oral rescission/alteration concerning disposition of the deposit lacked consideration.
3. Whether the oral agreement could be enforced when Mrs. Niernberg, a co-owner and co-signer of the written agreement, did not attend the conference or expressly assent.
4. Whether the evidence was sufficient to support the jury’s finding that an oral agreement existed and was breached.

## Decision

- The Colorado Supreme Court affirmed the judgment for the Felds.
- The court held that an executory contract concerning an interest in land may be rescinded by oral agreement, and the statute of frauds does not bar such a rescission because the statute addresses formation of covered contracts, not their rescission.
- The court held that the oral arrangement found by the jury was supported by consideration, including mutual releases from further performance under the written agreement and the revised allocation of rights to hold and apply the deposit pending resale.
- The court rejected the argument that the agreement was ineffective due to Mrs. Niernberg’s absence from the conference, treating Philip Niernberg’s conduct and the case as tried as sufficient on the record to sustain enforcement.
- The court deferred to the jury’s resolution of conflicting testimony about whether the oral agreement was made, and because the property resold for more than the Feld price, the Felds were entitled to return of the full deposit under the agreement the jury found.

## Legal Principles

- An executory contract involving title to, or an interest in, land may be rescinded by an oral agreement; the statute of frauds does not apply to such rescission.
- A subsequent oral agreement reallocating rights under a written contract can be supported by consideration where each side exchanges promises, including mutual releases from further performance.
- When evidence conflicts about whether an oral rescission or alteration occurred, the existence and terms of the agreement are for the jury, and an appellate court will not disturb the verdict if supported by competent evidence.
- A party who assumes to act regarding the transaction may be bound by the oral agreement on the facts found, even if another co-owner spouse did not attend the conference, where the record supports enforcement as tried.

## Conclusion

The Supreme Court of Colorado affirmed a jury verdict requiring the sellers to refund the buyers’ $1,500 deposit after finding that the parties orally rescinded or altered an executory land-sale contract and agreed the deposit would be returned if the property resold for more than the contract price; the statute of frauds did not bar the oral rescission, the agreement was supported by consideration through mutual releases and revised rights to the deposit, and the jury’s findings were supported by the evidence.


Niernberg v. Feld, 283 P.2d 640 (1955)