Opinion
Rehearing Denied July 18, 1972.
Bradley, Campbell & Carney, Earl K. Madsen, Leo N. Bradley, Golden, for plaintiff-appellant.
White & Steele, Walter A. Steele, Denver, for defendant-appellee.
DWYER, Judge.
Plaintiff-appellant, N. G. Petry Construction Co., a partnership engaged in the construction business as general contractors, will be referred to as Petry. Defendant-appellee, Fleming Company, Incorporated, a corporation engaged in the wholesale grocery business, will be referred to as Fleming. Defendant Jim Frazier, an employee of Fleming, will be referred to as Frazier. Defendant Q-T Markets, Inc., a corporation engaged in the retail grocery business under the trade name of Apollo Supers, Inc., will be referred to as Q-T Markets.
In its complaint, Petry, in separately stated claims against the several defendants, alleged that it had performed certain remodeling work in a store leased by Q-T Markets and that it was entitled to recover from defendants the contract price for the work or, in the alternative, the reasonable value of the material and labor furnished. Pursuant to stipulation, judgment was entered in favor of Petry and against Q-T Markets for $37,890 which is the full amount Petry demanded for the remodeling work. Petry's claim against Frazier was dismissed at the close of Petry's evidence, and no appeal has been taken from this judgment.
Petry's claim against Fleming was tried to the court, and at the close of the evidence, the court found the issues for the defendant and entered judgment for defendant in accordance with these findings. Petry has appealed the adverse judgment. We affirm.
In 1968 and 1969, Fleming was doing business as a supplier of wholesale grocery products to retail stores. The stores which Fleming supplies on a continuing basis are referred to as member retailers. In conjunction with its wholesale business, Fleming offered certain services to its member retailers including a store development and engineering service. Jim Frazier was the store development manager and store engineer for Fleming. In this capacity, Frazier assisted and advised member retailers in the remodeling of their stores.
In late 1968, Q-T Markets leased a building formerly occupied by the Pioneer Market and planned to operate a retail store in the leased premises. About this same time, Fleming and Q-T Markets agreed that Fleming would supply and finance the inventory of groceries for the store and that Frazier, for Fleming, would advise and assist Q-T Markets in remodeling the store prior to its opening.
In December 1968, Frazier contacted David Johnson, an employee of Petry, and requested that Petry submit a bid for the remodeling of the building which Q-T Markets had leased. On January 1, 1969, Petry submitted a written bid in the form of a letter addressed to the Fleming Company; attention, Jim Frazier. The bid was never accepted in writing. However, Frazier called Johnson on the telephone and told him that the bid had been accepted. Petry then commenced the remodeling work in January or February of 1969 and completed the job in April or May of the same year. On September 24, 1969, Petry sent its bill for the remodeling work to Fleming. Fleming informed Petry that the bill should be sent to Q-T Markets for payment, and Petry thereafter demanded payment from Q-T Markets. The bill for remodeling was not paid by either Fleming or Q-T Markets, and Petry then commenced this action.
At the trial the critical factual issue was whether Frazier, in accepting Petry's bid, was acting on behalf of Fleming or on behalf of Q-T Markets. The testimony on this issue is in conflict. Johnson testified that after the bid had been submitted he was contacted by Frazier who informed him that the bid had been accepted. He stated that he did not recall whether Frazier, in accepting the bid, informed him that the bid was accepted by Q-T Markets. Johnson also testified that he knew that Fleming was not going to operate the grocery store. He further testified that when he discussed the bid with Frazier he did not ask Frazier whether he was acting for Q-T Markets or for Fleming. He also testified that he never discussed payment with Frazier in their discussions about the bid.
Frazier testified that after he received the bid he presented it to the Board of Directors of Q-T Markets and then notified Mr. Johnson of Petry that he had discussed the bid with Q-T Markets and that they had approved and accepted it and for Petry to commence construction. Frazier did not specifically inform Mr. Johnson that he was not acting for Fleming.
The trial court resolved the conflict in the testimony of Frazier and Johnson and found:
'The evidence is in dispute as to how the bid was accepted, and the Court finds that Frazier went to Q-T Markets' people with the bid, Exhibit A, and Q-T Markets approved the bid, after which Mr. Frazier called Mr. Johnson and advised him to go ahead with the construction. At the time the bid was accepted by Mr. Frazier, Mr. Johnson was advised it was accepted on behalf of Q-T Markets.'
The court concluded that:
'There was no express contract between Fleming and Petry for the remodeling of the Pioneer Market and the written bid of Petry for the remodeling job was accepted by Mr. Jim Frazier, an employee of Fleming, on behalf of Q-T Markets, and not on behalf of Fleming.'
On this appeal, Petry contends that the findings and conclusions of the trial court are manifestly against the weight of the evidence and are not supported by sufficient evidence.
From the testimony of the witnesses and the facts and circumstances in evidence, two reasonable conclusions could be reached: (1) that Frazier accepted Petry's bid on behalf of Fleming and that Fleming was contractually obligated to pay for the remodeling work; or, (2) that Fleming accepted Petry's bid on behalf of Q-T Markets and that Fleming and not contractually obligated to pay for the remodeling work. The credibility of the witnesses, the sufficiency, probative effect, and weight of all the evidence, and the inferences and conclusions to be drawn therefrom, were all within the province of the trial court whose conclusions will not be disturbed on review unless so clearly erroneous as to find no support in the record. Adler v. Adler, 167 Colo. 145, 445 P.2d 906; Hipps v. Hennig, 167 Colo. 358, 447 P.2d 700. A court's finding based upon a choice between two plausible views of the weight of the evidence is not clearly erroneous. McSorley's, Inc. v. United States, 10 Cir., 323 F.2d 900; Thiele v. State of Colorado, Colo.App., 495 P.2d 558.
The trial court has resolved the conflicting factual issues in defendants' favor. Those findings are not clearly erroneous and, accordingly, will not be disturbed on review.
Petry contends that if its evidence was insufficient to establish an express contract it was entitled to recovery on a theory of quasi-contract. With respect to this claim, the trial court found:
'There was no direct benefit to Fleming by completion by Petry of the contract of remodeling of the Pioneer Market, which contract was between Q-T Markets and Petry, the bid having been accepted on behalf of Q-T Markets. Any benefit to Fleming by the remodeling of the Pioneer Market was mere indirect benefit from the improved capacity of Q-T Markets to do business of selling groceries.'
On the basis of this finding, the court concluded that:
'There was no unjust enrichment to Fleming arising out of the remodeling by Petry of the Pioneer Market operated by Q-T Markets.
'There was no implied contract or quasi-contract between Fleming and Petry for the remodeling of the Pioneer Market.'
The evidence in the record does not compel a contrary conclusion; the court's findings are not clearly erroneous, and, accordingly, the court's findings will not be disturbed on review.
Judgment affirmed.
ENOCH and PIERCE, JJ., concur.