Ace Flying Service, Inc. v. Colorado Dept. of Agriculture, 18607

• Decision Date: 25 January 1960
• Docket Number: No. 18607,18607
• Parties: ACE FLYING SERVICE, INC., a corporation, Plaintiff in Error, v. COLORADO DEPARTMENT OF AGRICULTURE and Paul W. Swisher, Commissioner, Defendants in Error.
• Court: Colorado Supreme Court

Page 962

348 P.2d 962

141 Colo. 467

ACE FLYING SERVICE, INC., a corporation, Plaintiff in Error, v. COLORADO DEPARTMENT OF AGRICULTURE and Paul W. Swisher, Commissioner, Defendants in Error.

No. 18607.

Supreme Court of Colorado, En Banc.

Jan. 25, 1960.

Rehearing Denied Feb. 16, 1960.

Vincent Cristiano, Robert Bugdanowitz, Denver, Charles F. Keen, Pueblo, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Dep. Atty. Gen., Samuel R. Freeman, Asst. Atty. Gen., for defendants in error.

KNAUSS, Justice.

The parties are here in the same order in which they appeared in the trial court and we will so refer to them.

This is the second time this action has been considered by this court. In a former opinion (Ace Flying Service, Inc. v. Colorado Department of Agriculture, 136 Colo. 19, 314 P.2d 278) it was held that the defendants could not rely on the doctrine of sovereign immunity. Following remand in that case the plaintiff filed an amended complaint in which it sought recovery of damages for an alleged breach of the contract entered into by the parties for the spraying of insect infested lands pursuant to prior legislative authorization. The contract was terminated by the defendants after approximately one-fifth of the contemplated acreage set forth in the contract had been sprayed.

Defendants moved to dismiss the amended complaint on the ground that it did not state a claim upon which relief could be granted. This motion was sustained by the trial court and the plaintiff is here by writ of error seeking reversal.

Exhibit 'A' a copy of the contract between the parties, is incorporated in the amended complaint. It consists of the 'Invitation to Bid' and the 'Bid'. It is alleged that on May 25, 1954 defendant Swisher as agent of the Department of Agriculture, entered into the contract with plaintiff under which plaintiff was obligated to spray an estimated 1,000,000 acres of rangeland for the price of 13 3/4 cents per acre; that for the purpose of carrying out its obligation under the contract the plaintiff borrowed 'large sums of money, incurred total preparatory expenditures amounting to $32,532.18 in order to prepare itself to perform the necessary spraying of an estimated 1,000,000 acres and furnished the necessary aircraft, personnel and material to fully perform'. It was further alleged that plaintiff actually sprayed 243,792 acres, but was prevented from completing the spraying of the estimated 1,000,000 acres by defendants, who failed and refused to provide the balance of the acreage; that plaintiff received from the Department the sum of $32,518.65 for the acreage sprayed, plus the sum of $1,500, and that by reason of such termination suffered damage in the sum of $24,653.03 as preparatory expense on the unsprayed acreage, together with $16,939.51 representing net loss of profit on the acreage not made available by defendants.

The contract inter alia provides: (Sec. IV I) 'It is mutually agreed and understood that: 1. The State and its cooperators may terminate this contract at any time subject only to the service guarantee herein specified (Sec. IV, paragraph 19).' This last mentioned paragraph reads as follows: 'When one or more spraying aircraft are requested by the State and its cooperators and such aircraft are on the airstrips and ready for immediate operation, and no spraying is done during a day due to weather conditions, status of insect development, or other extraordinary or unforseeable conditions, the contractor shall be entitled to and shall receive as rent, for each aircraft meeting the requirements set out in this instrument, thirty-five dollars ($35.00) per day for each single-engine aircraft and one hundred dollars ($100.00) per day for each multi-engine aircraft. The total of such rent paid by the State and its cooperators during the life of the contract shall not exceed five hundred twenty-five dollars ($525.00) for each single-engine aircraft, nor fifteen hundred dollars ($1500) for each multi-engine aircraft.

'Any amounts earned by the contractor as a result of acres sprayed in compliance with this contract shall be used first to reduce or reimburse the rent amounts due or previously paid under this contract. Payment will be made for acreages sprayed only to the extent that the amount earned therefor exceeds any rent paid or due under this provision.'

Counsel for plaintiff in their brief state: 'Though we have searched...