Klipfel v. Neill, 71--361
| Decision Date | 15 February 1972 |
| Docket Number | No. 71--361,71--361 |
| Citation | 494 P.2d 115,30 Colo.App. 428 |
| Parties | , 10 UCC Rep.Serv. 582 Willard KLIPFEL, Plaintiff-Appellee, v. Bernard NEILL, Defendant-Appellant. . II |
| Court | Colorado Court of Appeals |
Gordon, Lefferdink & Legg, John J. Lefferdink, Lamar, for plaintiff-appellee.
Schmidt & Schmidt, Howard M. Schmidt, Springfield, for defendant-appellant.
Defendant Bernard Neill, orally contracted with plaintiff Willard Klipfel, for the construction of two water stock tanks. Klipfel agreed to construct the tanks in accordance with specifications provided by the United States Department of Agriculture Soil Conservation Service. Upon completion, he was to be paid $890. Klipfel agreed to furnish labor and materials for the tanks, except for steel rims which Neil was to provide. Klipfel constructed the two tanks which were certified by the Soil Conservation Service as complying with its specifications. Upon this approval, Neill received a percentage payment or cost-share reimbursement of the construction from the Soil Conservation Service.
Neill subsequently found that one tank leaked when it was filled with water. The Soil Conservation Service reinspected the tanks and revoked approval. This revocation placed Neill in the position of having to make repairs to bring the tank to specifications or return the cost-share payment received from the Soil Conservation Service. Neil refused to pay Klipfel for the tanks until they were repaired and rejected the plaintiff's offer to perform the labor on the repairs if Neill would furnish materials. Upon Neill's refusal to pay, Klipfel sued on the contract, and alternatively, for a quantum meruit recovery.
The court below found that Klipfel substantially complied with the contract and that the specifications of the Soil Conservation Service had been met. The court determined that the specifications were deficient, thereby causing the leak. The findings of the court are supported by the evidence. The court allowed recovery on the basis of quantum meruit in the amount of $890.
Defendant Neill argues that the lower court erred in not finding an implied warranty of fitness for a particular purpose and cites C.R.S.1963, 155--2--315, in support. Under this section of the Uniform Commercial Code, however, the buyer's reliance on the seller's skill or judgment must be shown before an implied warranty of fitness of purpose can arise.
Although plaintiff Klipfel objected to the use on the tanks of asphalt, as required by the Soil Conservation Service specifications, and to the use of a smooth steel rim, as supplied by defendant, he nonetheless complied with the specifications. The record indicates that compliance with Soil Conservation specifications was necessary not only for defendant's entitlement of cost-share payments, but also for plaintiff's satisfactory performance of the contract. This does not establish a reliance by the defendant upon plaintiff's skill or judgment. See C.R.S.1963, 155--2--316 (comment 9).
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...is inaccurate. Metropolitan Industrial Bank v. Great Western Products Corp., 158 Colo. 198, 405 P.2d 944 (1965); Klipfel v. Neill, 30 Colo.App. 428, 494 P.2d 115 (1972). In Trageser v. Libbie Rehabilitation Center, Inc., 590 F.2d 87 (4th Cir. 1978), cert. denied, 442 U.S. 947, 99 S.Ct. 2895......
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...and we will not disturb the trial court's decision merely because it assigned one incorrect reason for it. See Klipfel v. Neill, 30 Colo.App. 428, 494 P.2d 115 (1972). III. Basham's final contention, that the trial court improperly awarded prejudgment interest, is without merit. Section 5-1......
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