Murray v. Rock
| Decision Date | 28 August 1961 |
| Docket Number | No. 19108,19108 |
| Citation | 364 P.2d 393,147 Colo. 561 |
| Parties | William M. MURRAY and Ray T. Bach, Individually, and d/b/a Commercial Refrigeration and Fixture Co., and Commercial Refrigeration Fixture Company, Inc., a Colorado Corporation, Plaintiffs in Error, v. Stanley ROCK, d/b/a Brentwood Meat Market, Defendant in Error. |
| Court | Colorado Supreme Court |
Vernon K. Sessions, Denver, for plaintiffs in error.
Alan L. Sternberg, Littleton, Ralph C. Taylor, Denver, for defendant in error.
Plaintiffs in error, Murray and Bach, will be referred to as 'Commercial'; and the corporate plaintiff in error will be referred to as the corporation. The defendant in error will be mentioned by name.
The action was commenced by Rock who alleged in his complaint that he was the owner of a certain retail meat business; that in January, 1958, he entered into a written contract with Commercial under which the latter was to provide certain refrigeration equipment, and do certain remodeling of the premises occupied by Rock; all for a total consideration of $10,500; and that at the time of the making of said agreement the sum of $3,500 was paid to Commercial by Rock.
When the work commenced it was discovered that the proposed remodeling did not receive the approval of Rock's landlord and that the contemplated improvements were out of harmony with the requirements of certain applicable zoning restrictions and other building ordinances.
In April, 1958, the partners who had operated as Commercial incorporated their business and created the corporate plaintiff in error. Rock alleged that the work contemplated by the original contract was stopped because of the refusal of the landlord to agree to the changes which had been planned, and because of the poor workmanship of Commercial; and that Rock had expended $250 to cover up what had been started.
Rock further alleges that on or about May 25, 1958, the 'defendants' (which of course includes the individuals Murray and Bach and the corporation) agreed orally with Rock that certain of the equipment could be used on the premises occupied by plaintiff without the remodeling and expansion as originally contemplated, and that under said oral agreement a four-foot section was added to the McCray cooler; a compressor, coil and fan were installed; that all of this was so installed as to be a part of a walk-in cooler then on the premises; and that the compressor, coil and fan then on the premises were replaced by new and additional parts. Rock asserts that the compressor, coil and fan were represented by defendants to be of sufficient capacity to take care of the cooler as enlarged, and to be of greater cooling capacity than that which was replaced. That in fact it was not. That the coil and fan were defective and inadequate, and the entire job was done in a slipshod and unworkmanlike manner; that it did not perform satisfactorily and did not keep the temperature of the cooler low enough. He further alleged the failure of defendants to correct the defects and that on the 15th of June, 1958, the contract was terminated.
Rock further alleged that he spent and will be required to spend $500 in repairing and properly installing the equipment in question; that he has had a loss of profits in the sum of $3,000 and that he has been deprived of interest on the $3,500 down payment made by him.
The prayer of the complaint was for return of the down payment of $3,500 with interest; $3,750 compensatory damages, $5,000 punitive damages, for costs and interest to date and other relief.
Commercial and the corporation by answer denied that the work was stopped by plaintiff's landlord; denied the expenditure of $250 for cover-up work and generally denied any fault or failure to perform on their part; denied the existence of any damages; and alleged affirmatively that plaintiff failed to meet requirements of his landlord and that the breach of the contract was by the plaintiff.
By way of counter-claim, defendants set forth that plaintiff had failed in various respects in the performance of his part of the agreement; that defendants were damaged in the sum of $5,700 in loss of profits on the job by reason of plaintiff's refusal to permit completion, and that they were damaged in loss of credit due to the action of plaintiff. Def...
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