Opinion
March 13, 1973.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 1113
Albert G. DeRose, Denver, for plaintiff-appellant.
David W. Sarvas, Lakewood, for defendant-appellee.
Before COYTE, ENOCH and SMITH, JJ.
COYTE, Judge.
This is an action wherein plaintiff is seeking damages against defendant for breach of contract. Defendant contends that subsequent to its representative signing the contract plaintiff altered a material portion of it without defendant's knowledge and that therefore the contract is null and void. Trial was to the court, which found for defendant and dismissed plaintiff's complaint.
Plaintiff contends on appeal that defendant did not preduce evidence which would support the affirmative defense that the contract was altered. We disagree with its contentions and affirm the judgment.
The contract, as introduced into evidence by plaintiff, provided that plaintiff would apply a certain quantity of polyurethane foam to the roof of defendant's building in consideration of the sum of $1,000 to be paid to plaintiff by defendant. The contract in part provided: 'Foam to be furnished by AAA Tire Service Inc.' Each party's representative testified to the circumstances surrounding the signing of the contract. Plaintiff's representative testified that this provision was in the contract when it was signed. Defendant's representative testified that the provision was not in the contract when he signed the same and that it had been altered after he had signed it; and that when he discovered the alteration he called plaintiff and refused to allow it to start work under the contract with the disputed provision included. Plaintiff claims loss of profits by reason of defendant's failure to allow it to perform the contract.
Plaintiff contends that defendant did not present evidence by which the trial court could find that there had been an alteration in the contract after it was signed. We disagree.
The court found that the contract was altered after defendant's representative had signed it and that the alteration constituted a material part of the contract which completely changed the nature of the contract. Although conflicting evidence was presented on these issues, there is ample evidence in the record to support the findings of the trial court, and thus they cannot be disturbed on review. Briano v. Rubio, 141 Colo. 264, 347 P.2d 497. The trial court and not this court is the trier of fact. Brewer v. Williams, 147 Colo. 146, 362 P.2d 1033.
Any material alteration of a contract after its execution without the consent of the other party bars an action on that contract against the party not consenting to the change. Anderson v. Donato, 224 Mich. 216, 193 N.W. 805. See Valley State Bank v. Dean, 97 Colo. 151, 47 P.2d 924; Tom Boy Gold Mines Co. v. Green, 11 Colo.App. 447, 53 P. 845. Thus the trial court properly dismissed plaintiff's complaint.
Judgment affirmed.
ENOCH and SMITH, JJ., concur.