H. B. Bolas Enterprises, Inc. v. Zarlengo

• Decision Date: 29 March 1965
• Docket Number: No. 21225,21225
• Citation: 156 Colo. 530,400 P.2d 447
• Parties: H. B. BOLAS ENTERPRISES, INC., Plaintiff in Error, v. William G. ZARLENGO, Jr. and Katherine M. Zarlengo, Defendants in Error.
• Court: Colorado Supreme Court

Page 447

400 P.2d 447

156 Colo. 530

H. B. BOLAS ENTERPRISES, INC., Plaintiff in Error, v. William G. ZARLENGO, Jr. and Katherine M. Zarlengo Defendants in Error.

No. 21225.

Supreme Court of Colorado, En Banc.

March 29, 1965.

Martin P. Miller, Littleton, for plaintiff in error.

No appearance for defendants in error.

FRANTZ, Justice.

The judgment for damages obtained by Mr. and Mrs. Zarlengo against H. B. Bolas Enterprises, Inc. is the subject of review by this writ of error. A residential property belonging to Intermountain Construction Company had been sold to the Zarlengos by Bolas Enterprises, and the present suit emanated from such sale.

Essentially, the grievance forming the basis of the Zarlengos' claim against several defendants is the loss allegedly sustained by them when the basement walls of the house which they purchased cracked and admitted water.

The Zarlengos filed two claims for monetary relief and a third for rescission. In their first claim, they alleged that the defendants (Harold B. Bolas, H. B. Bolas Enterprises, Inc., and Intermountain Construction Co.) had represented that the house was properly constructed, and that they relied 'upon written and implied warranties * * * regarding the fitness of the said house for occupancy by them.'

They then alleged that the basement walls cracked and permitted large quantities of water to enter, causing damage to the home and to various items stored in the basement. Negligence in several respects is set forth, after which the Zarlengos stated that:

'As a result of Defendants' negligence, the Plaintiffs have been put to great inconvenience in the use of their home; have suffered damage to the heating and hot water systems in the house; have suffered damage to many items stored in the basement; have suffered an overall deterioration in the value of the house, and have been deprived of the full and normal use of the premises to which they are entitled, all to Plaintiffs' damage in the sum of $15000.00.'

By their second claim, the Zarlengos sought to recover damages in the sum of $15,000.00 for breach of 'expressed and implied warranties' of fitness. Their third claim in rescission was dismissed because confessedly Zarlengos' conduct manifested an affirmance of the contract.

In its pre-trial order, the trial court construed the complaint as stating two claims: one for negligence in the construction of a residence for the plaintiffs, and the other for violation of contract arising from breaches of express and implied warranties of fitness for habitation. In his opening statement to the trial court, counsel for the Zarlengos advised the court that the action involved 'different theories: one based on negligence, and the other based on breach of warranties.'

At the conclusion of the evidence, the case was taken under advisement, and in due time the trial court made 'Findings of Fact, Conclusions of Law, and Judgment.' The trial court noted that the Zarlengos' 'first cause of action was based upon negligence and the second cause of action was based upon an express and implied' warranty.

The trial court observed that an area of land was subdivided by Bolas and title taken in the name of Bolas Enterprises, and that Bolas set up a sales organization to sell lots and houses which were built on the subdivided property. It found that the particular property was held in the name of Intermountain Construction Company and 'that it had been built and sold' by Bolas Enterprises 'to some people by the name of William C. Macklin and wife' and subsequently sold by Bolas Enterprises to the Zarlengos.

The trial court noted that the contract of sale to the Zarlengos recited that Bolas Enterprises undertook to construct a residence on the property, that the purchase price would be $13,625.00, and that it contained provisions for financing the purchase of the property. It took note of testimony showing that the builder of the house was Dike and Colegrove, Inc. It found that the Zarlengos were uninformed as to Intermountain Construction Company and as to Dike and Colegrove, the corporations which respectively owned and built the house; that the Zarlengos 'relied solely upon the representations that H. B. Bolas Enterprises, Inc. was the owner of the property, the builder of the house, the warrantor of the construction, and that it received the money from the sale thereof.'

The trial court further found that, so far as the Zarlengos were concerned, Bolas Enterprises 'was the owner of the property, constructed the house, guaranteed the work, and by their actions endeavored to take care of the faulty construction of the house after it was built.' The trial court made specific findings as to items of...