Zion Baptist Church v. Hebert, 12820.

• Decision Date: 18 December 1933
• Docket Number: 12820.
• Citation: 28 P.2d 799,94 Colo. 59
• Parties: ZION BAPTIST CHURCH v. HEBERT.
• Court: Colorado Supreme Court

28 P.2d 799

94 Colo. 59

ZION BAPTIST CHURCH v. HEBERT.

No. 12820.

Supreme Court of Colorado

December 18, 1933

In Department.

Error to District Court, City and County of Denver; Henley A Calvert, Judge.

Action by J. C. Hebert against the Zion Baptist Church, a corporation. Judgment for plaintiff, and defendant brings error.

Affirmed.

Omar E Garwood, Milton C. Garwood, and George O. Marrs, all of Denver, for plaintiff in error.

F. E. Dickerson, T. J. Morrissey, and George O Bakke, all of Denver, for defendant in error.

HOLLAND Justice.

Plaintiff in error was defendant in the court below and will be referred to as the church, and the defendant in error as the contractor.

In August, 1925, the contractor filed his complaint on quantum meruit for labor and material furnished in connection with the installation of a heating plant for the church, claiming that the work performed and the material furnished were reasonably worth $3,284.54; $67.44 and $8.12 were claimed on second and third causes of action for small extras. These last two items were uncontroverted. The answer of the church pleaded a written contract, which was breached by failure of the guaranty, alleged payment of $2,000 on the contract, and made counterclaim for $2,500 as damages for the breach. The contractor, by his reply, denied entering into a written contract, but alleged that he submitted a written bid. Judgment for the contractor in the sum of $1,389.73 was entered on the jury's verdict. To reverse this judgment, the church brings error.

The writing which the contractor alleges to be a bid, and which the church insists is a contract, is as follows:

'J. C. Hebert, 3324 Elizabeth

'Denver, Colorado, July 24, 1924.

'To the Honorable Board of Trustees, Zion Baptist Church, 24th & Ogden St.

'Gentlemen: I propose to furnish and install 2076 ft. of radiation and a #8 K Hewanee boiler of 2450 ft. capacity, cover all mains in basement with asbestos air pipe cell pipe covering, cover boiler with asbestos cement, equip radiator with packless valves, patented union checks, five year guaranteed air valves and nickel plated floor and ceiling plates where pipe pass through floor. Paint all radiator and pipe above floor aluminum or bronze as the board may desire.

'The above plant is guaranteed to heat the building to 70 degrees when it is zero outside.

'The plant installed complete for the net sum of $2,884.54 and if oil burner is desired to handle the job with a 500 gal. tank and a one day thermostat and clock, set up and installed for the net sum of $400.00.

'Respectfully submitted,

'J. C. Hebert.'

Upon the trial, the church stood squarely upon the proposition that this was a complete contract, nonseverable in its terms, that it could not be disregarded by the contractor, and that he could not recover on quantum meruit or at all short of a full performance of all the terms of the contract, which could not be varied by parol testimony.

The assignments of error, other than the giving and refusing of certain instructions, refer substantially to the construction placed upon the above writing by the court. If its construction, derived from the face of the writing and the evidence offered in the case, was correct, then all the instructions given to the jury as we find them are correct, and there is no basis for the complaint made by the church.

The writing, on its face, was a proposal by the contractor subject to the acceptance or rejection by the church. The acceptance was oral. The effect of an acceptance is to convert the offer or proposal into a contract. ...