Comfort Homes, Inc. v. Peterson
| Citation | 37 Colo.App. 516,549 P.2d 1087 |
| Decision Date | 22 April 1976 |
| Docket Number | No. 75--232,75--232 |
| Parties | COMFORT HOMES, INC., a Colorado Corporation, Plaintiff-Appellant, v. Mr. and Mrs. Carl B. PETERSON, Jr., Defendants-Appellees. . III |
| Court | Colorado Court of Appeals |
Agee, Fann, Ewing & Goldstein, Peter A. Goldstein, Colorado Springs, for plaintiff appellant.
Murray, Baker & Wendelken, Ben S. Wendelken, Colorado Springs, for defendants appellees.
This is an action brought by the builder, Comfort Homes, Inc., against the owners, Mr. and Mrs. Carl Peterson, for damages for breach of contract prior to completion of construction. At the conclusion of the builder's case in a trial to the court, the owners' motion to dismiss was granted on the grounds that the builder had failed to prove damages and that the action was barred by the three-year statute of limitations. Contending that the six-year and not the three-year statute applies, and that there was sufficient proof of damages, the builder appeals. We reverse.
In ruling on the owners' motion to dismiss, the trial court summarized the builder's evidence. Roland Davis, the principal officer of the builder, testified that, in May or June of 1967, the parties entered into an oral contract whereby the builder was to supervise the construction of a new home for the owners for a fixed fee of 10 percent of the estimated cost of the completed construction (not the actual cost), such fee to be paid on completion. The estimated cost was $100,000. He further testified that, although the plans and specifications were prepared by an architect, he had spent many hours making drawings and discussing the building with Mr. Peterson, one of the owners. According to Davis, he started construction and had poured a portion of the footings and was putting up a form for a concrete wall, when the architect complained about the form being improperly constructed. Thereafter, Mr. Peterson, the architect and Davis had a meeting, at which the architect informed the owner that either Davis had to quit or he (the architect) would quit. Later that day, Mr. Peterson fired the builder. The owners had paid all bills for labor and materials up to the time of discharge, but none of the supervisory fee. The owners had asked Davis to devote full time to the supervision of the construction, so the builder had accepted no other work. However, on being fired by the owners, the builder commenced work on a house for another person, construction of which started in September.
Mr. Peterson, called by the builder as an adverse witness, testified that the estimated cost was $80,000, and that he had paid whatever he was billed for. Omitted from the court's summary of testimony was the uncontroverted evidence that the builder's supervisory fee was to be in addition to all out-of-pocket expenses incident to the job, that the builder was terminated July 5, 1967, and that the house was completed by another builder at an actual cost of $117,000.
'Based on such evidence and accepting the (builder's) version of the agreement,' the court found that there was no substantial performance of the agreement by the builder, that from the record it appeared that the builder lost some time due to its discharge but that it was impossible (1) to determine how much time it lost, (2) whether its profit was greater or less from the construction of the other house than it would have been from the owners' house, or (3) what the value of the builder's services were for the construction accomplished prior to discharge. From these findings, the court concluded that it could not 'determine what amount is necessary to compensate the plaintiff, and can find no evidence upon which the court could predicate any judgment for the (builder).' The motion to dismiss was therefore granted, with each party to pay its own costs.
Uncertainty as to the amount of damages is not an obstacle in the way of their allowance.' Westesen v. Olathe State Bank, 75 Colo. 340, 225 P. 837. Here the evidence established, and the court in effect found, that there was a contract and that the owners had breached it. Even if the builder had failed to establish substantial damages, the court was not justified in withholding all damages and in dismissing the action, since the owners' breach in itself entitled the builder to at least nominal damages. Hoehne Ditch Co. v. John Flood Ditch Co., 76 Colo. 500, 233 P. 167.
Moreover, the uncertainty in the evidence was only as to which of two figures was to be used as the base from which the amount of damages was to be determined. According to the testimony, the builder was to receive, as its fee for supervising the construction, 10 percent of either $80,000 or $100,000, these being the two figures testified to as the estimated...
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