Underhill v. Detert
| Decision Date | 06 May 1963 |
| Docket Number | No. 20196,A-O,20196 |
| Citation | 381 P.2d 265,152 Colo. 223 |
| Parties | John E. UNDERHILL and Laura L. Underhill, Plaintiffs in Error, v. Effie L. McGuffin DETERT, also known as Effie L. McGuffin, doing business asne House Movers, Defendant in Error. |
| Court | Colorado Supreme Court |
Sidney Tellis, Denver, for plaintiff in error.
Martin Zerobnick, Denver, for defendant in error.
The parties will be referred to by name or as they appeared in the trial court where plaintiffs in error, the Underhills, were defendants and defendant in error, Mrs. Detert, was the plaintiff.
The complaint alleged that the parties had entered into contracts whereby the plaintiff would construct a foundation, footings, and a basement on a lot in Jefferson County and then move a house from Denver and place it on the foundation constructed by her. The plaintiff alleged that she had performed the construction, moving and placing and that she had performed additional work requested by the defendants which had not been covered by the original contracts. She sought the contract price of $1300.00 for the construction of the foundation, basement and footings, and the contract price of $675.00 for the house moving and $662.03 for the additional work performed.
The defendants' answer admitted that the defendants had entered into the contracts with the plaintiff, but denied any indebtedness to her either under the contracts or for the additional work, and by counterclaim contended that the plaintiff had performed the work in an unworkmanlike and dilatory manner and that as a result they had suffered damages in the amount of $3675.00.
Trial was to the court which awarded the plaintiff $1925.00 for the work done pursuant to the contracts and $346.73 for additional work. Defendants were awarded $175.00 on their counterclaim. Judgment was accordingly entered and the defendants, being dissatisfied therewith are here on writ of error.
The defendants do not complain of the $1925.00 awarded to the plaintiff for the work done pursuant to the contracts nor of $31.65 of the amount awarded for additional work. They do contend that the court erred in awarding the plaintiff $283.00 and $32.08 for two items of additional work and in awarding the defendants only $175.00 on the counter-claim.
Plaintiff attached to her complaint Exhibit A, which specifically listed six items of additional work for which she sought compensation and which listed the cost to her of each of the items of extra work performed. On direct examination plaintiff testified that these six items were not covered by the original contracts, which were oral, but were extras requested by the defendants and performed by her. The defendant John Underhill stated that with one exception all items of work listed on Exhibit A were not extras but were required to be performed by the plaintiff pursuant to the terms of the contracts. On the basis of this conflicting testimony, the trial court allowed recovery for certain of the extras and denied recovery for others. The court was the trier of the facts and its determination based upon competent evidence must be upheld. Dollison v. Cook, 147 Colo. 453, 364 P.2d 207.
Exhibit A, though attached to the complaint, was not formally offered in evidence by the...
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...the right or privilege, or acts inconsistently with its assertion. See People v. Abbott, 638 P.2d 781 (Colo.1982); Underhill v. Detert, 152 Colo. 223, 381 P.2d 265 (1963); Johnson v. Neel, 123 Colo. 377, 229 P.2d 939 (1951); People ex rel. Metzger v. Watrous, 121 Colo. 282, 215 P.2d 344 (19......
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