Johnston v. Emerson

• Court: Colorado Supreme Court
• Writing for the Court: HOLLAND
• Citation: Johnston v. Emerson, 296 P.2d 229, 133 Colo. 343 (Colo. 1956)
• Decision Date: 26 March 1956
• Docket Number: No. 17752,17752
• Parties: Ralph B. JOHNSTON, Plaintiff in Error, v. Eileen H. EMERSON and Edgar I. Emerson, Defendants in Error.

Page 229

296 P.2d 229

133 Colo. 343

Ralph B. JOHNSTON, Plaintiff in Error, v. Eileen H. EMERSON and Edgar I. Emerson, Defendants in Error.

No. 17752.

Supreme Court of Colorado, En Banc.

March 26, 1956.

Rehearing Denied May 7, 1956.

Rinn & Connell, Boulder, for plaintiff in error.

Ryan & Sayre, Charles E. Williams, Jr., Boulder, for defendants in error.

HOLLAND, Justice.

Defendants in error, husband and wife, will be referred to as plaintiffs.

On March 31, 1949, the wife, eileen H. Emerson, was the owner of property known as the Old Country Club Building, northeast of Boulder, Colorado. On that date she entered into a contract with defendant Johnston by which defendant contracted to do certain specified remodeling and construction work on the building. After defendant had done considerable work and a few days before August 18, 1949, while he was working on the outside of the building, the husband of the owner, not knowing of the presence of Johnston, took an iron bar and battered and damaged the nosing of a window. There had been some minor disagreements between the parties prior to this incident which brought their difficulties to a head and resulted in an agreement dated August 18, 1949, which, by its terms, purports to be a mutual release of one against the other of all claims to date with exceptions noted therein. The controversial part of this release agreement is as follows:

'3. First Party agrees to release said Second Party, his heirs, executors, administrators, and assigns from any and all manner of sums of money, debts, accounts, actions, proceedings, claims and demands whatsoever which she, her heirs, executors, or administrators, but for these presents, could, would, or might, at any time or times hereafter, have, upon or against said Second Party, his heirs, executors, or administrators for or by reason or on account of any matter, cause or thing whatsoever up to and inclusive of the date of these presents, which might have or has arisen out of aforesaid contract of employment between the Parties; expressly excepting, however, the following-mentioned matters and things, to-wit:

'The Second Party shall and hereby does warrant and guarantee that all work already executed under the aforesaid agreement whereby First Party employed Second Party as contractor will be sound and waterproof, free from defects of materials and workmanship for a period of one year from the date of these presents. The Second Party further agrees that he will at his own expense repair and replace all such defective work and all other work damaged thereby for a period of one year from the date of these presents.'

This action arises under the exception clause above quoted, and defendant contends that the claims made by plaintiff under this clause were fully released by the first part of the above quoted paragraph. Prior to August 18, 1949, and on the 25th day of April, the wife executed a warranty deed conveying the property to herself and her husband as joint tenants. It is alleged in the complaint that the work and efforts of defendant in attempted compliance of the rescission agreement has not been satisfactory and was done in an unskilled and negligent manner and is not free of defects of material and workmanship. Because of this failure they have been damaged in the sum of $5,000. After various motions and bill of particulars were filed, defendant answered, generally denying the allegations of the complaint; setting up numerous matters of affirmative defense; and filed a cross complaint and counterclaim. The prayer of the complaint was for $5,000.

Trial was had to the court. The complaint was filed January 25, 1951 and final hearing and judgment entered on April 12, 1955. The judgment was in favor of plaintiff Eileen H. Emerson, the wife in the sum of $5,360.80.

Counsel for plaintiff in error contend that the trial court erred in the following particulars: That it was error for the court to allow counsel for plaintiffs to testify as to material matters concerning the merits of the case and at the same time conduct the trial; that it was error to enter judgment in favor of plaintiff in error wife when she, as joint tenant, was seized of an undivided share of the whole estate rather than the whole of an undivided share; that the judgment is based upon estimates of damage and...