Zambakian v. Leson
| Decision Date | 06 April 1925 |
| Docket Number | 11169. |
| Citation | 77 Colo. 183,234 P. 1065 |
| Parties | ZAMBAKIAN v. LESON. |
| Court | Colorado Supreme Court |
Department 3.
Error to Distrct Court, City and County of Denver; Geo. F. Dunklee Judge.
Action by J. Leson against A. K. Zambakian. Judgment for plaintiff and defendant brings error and applies for supersedeas.
Supersedeas denied, judgment reversed, and cause remanded for new trial.
H. A Lindsley and H. E. Luthe, both of Denver, for plaintiff in error.
This is an action upon a written contract, by the terms of which plaintiff agreed to install one new Garland furnace for defendant in a dwelling or apartment house, and the defendant agreed to pay therefor the sum of $400, and turn over to plaintiff the old furnace previously located in the house. The trial court directed a verdict for plaintiff for the full contract price, with interest, and judgment was entered on the verdict. The defendant has sued out this writ, and applies for a supersedeas.
The contract contained the following clause: 'This furnace is guaranteed to heat said house to a temperature of 70 degrees in the coldest weather.' The defendant pleaded, and sought to prove, nonperformance of the contract as to the term expressed in the clause above quoted; that is, that it will not heat the house to the extent guaranteed. The defendant's evidence is to the effect that it was impossible to heat most of the rooms to a temperature of 70 degrees in extremely cold weather, and that a fair test showed a temperature of only 58 degrees in some of the rooms at a time when the weather outdoors was 8 degrees below zero.
There was not a full or strict compliance with the terms of the contract on the part of the plaintiff. In view of the evidence above mentioned, we cannot say that, as a matter of law, there was even a substantial compliance. Weather which is 8 degrees below zero is not unprecedented, and a heating apparatus which cannot heat the house to the extent of more than 58 degrees in such weather cannot be said to be successful or efficient. Whether a contract has been substantially performed by the builder or contractor is ordinarily a question for the jury. 9 C.J. 887. It was error to direct a verdict for plaintiff, when there was evidence on which the jury might find that there was not a substantial compliance with the contract.
If there was a substantial compliance with the contract plaintiff was entitled to recover the contract price, but with such a deduction as would compensate the owner of the house for defective performance. Morris v. Hokosona, 26...
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Houy v. Davis Oil Co., 23450
...Reynolds v. Armstead, 166 Colo. 372, 443 P.2d 990 (1968); Campbell v. Koin, 154 Colo. 425, 391 P.2d 365 (1964); Zambakian v. Leson, 77 Colo. 183, 234 P. 1065 (1925); Louthan v. Carson, 63 Colo. 473, 168 P. 656 (1917); Morris v. Hokosona, 26 Colo.App. 251, 143 P. 826 (1914). We, therefore, h......
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Mitchell v. Carlson
...waiver is a question of fact, depending upon the circumstances of each case, and is to be referred to the jury. Zambakian v. Leson, 77 Colo. 183, 185, 234 P. 1065, 1068. Mere payment and moving in does not impart knowledge of the defects to the plaintiff, nor by such action do they waive th......
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Karlinski v. P. R. & H. Lumber & Constr. Co.
...Williston on Contracts, Revised Edition, section 724; 9 Am.Juris., Building and Construction Contracts, section 53. In Zambakian v. Leson, 77 Colo. 183, 234 P. 1065, the court discusses the acceptance of the work as a waiver of defective performance, and says (page 1066): “However, the mere......
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Campbell v. Koin
...failure to fully perform. Leoffler v. Wilcox, 132 Colo. 449, 289 P.2d 902; Zambakian v. Leson, 79 Colo. 350, 246 P. 268; Zambakian v. Leson, 77 Colo. 183, 234 P. 1065; Louthan v. Carson, 63 Colo. 473, 168 P. 656; Morris v. Hokosona, 26 Colo.App. 251, 143 P. An often-cited case is that of Lo......