Opinion
Aug. 14, 1973.
Editorial Note:
This case has been marked 'not for publication' by the court.
Hellerstein & Hellerstein, P.C., Martin H. Shore, Robert Z. Bohan, Denver, for plaintiff-appellee.
Galligan & Foley, Gerald H. Galligan, Denver, for defendant-appellant.
COYTE, Judge.
Defendant, Denver Development Corporation, appeals from a judgment and order foreclosing a mechanic's lien which plaintiff filed in connection with certain surveying and engineering work it performed for defendant.
The parties entered into a contract whereby plaintiff agreed to perform certain surveying under the following terms:
'The agreed fee for the above engineering and surveying shall be at the rate of $100.00 per plot--fee for Replacing missing Section corners, if any, shall be at the rate of $19.00 per hour plus travel time and mileage.' (emphasis added)
From time to time plaintiff submitted statements totaling $14,076.78 for work performed under the contract. Defendant paid $5,000 for 50 plots at the agreed price of $100 per plot and refused to pay the balance of $9,076.78, which balance is the subject of the present controversy. The unpaid portion of the bill consists of charges for work performed in connection with the location and replacement of missing section corners and work defendant requested in addition to the work required under the original contract.
Defendant denies liability for the charges imposed in connection with location of section corners on the theory that such work was covered under that part of the contract which called for engineering and surveying at a rate of $100 per plot and that the term 'replacing' used in connection with the lost section corners merely referred to the actual physical setting of such section corners. After trial to the court, it found that the term 'replacing' necessarily contemplated locating lost section corners as well as physically setting them out and entered judgment in the amount of $9,076.89 plus accrued interest. Defendant appeals. Subject to the modification hereinafter ordered, we affirm.
In essence, this dispute revolves around the proper construction to be given to the term 'replacing' used in the contract. The authorities universally recognize that whenever courts are called upon to construe contracts containing ambiguities or unclear language, the court should give effect to the intention of the parties in light of the facts and circumstances of the particular case. Leach v. LaGuardia, 163 Colo. 225, 429 P.2d 623; Hutchinson v. Elder, 140 Colo. 379, 344 P.2d 1090; Kingsbury & Co. v. Riverton-Wyoming Refining Co., 68 Colo. 581, 192 P. 503. Although this court is not bound by the trial court's interpretation of a written contract, Sentinel Acceptance Corp. v. Colgate, 162 Colo. 64, 424 P.2d 380, here there is evidence in the record to support the finding of the trial court that the parties intended the term 'replacing' to mean locating, as well as physically setting, the missing corners, and that finding will not be disturbed. Dominion Insurance Co., Ltd. v. Hart, Colo., 498 P.2d 1138; Adler v. Adler, 167 Colo. 145, 445 P.2d 906.
Defendant also contends that if plaintiff is entitled to a judgment, the judgment entered is excessive. It argues that only one missing section corner was replaced on its property. The procedure for restoration of lost or obliterated corners is well established. See United States v. Doyle, 468 F.2d 633 (10th Cir.). There is no contention that location of the other corners was not necessary so that plaintiff could properly survey the land in question, nor that plaintiff did not follow the correct procedure in locating the missing corners. Plaintiff presented evidence as to the hours spent in locating and replacing the missing section corners, and the court found that the work for which defendant was billed was actually performed and that the parties intended that plaintiff be paid for time spent in replacing all section corners necessary for the survey. This finding is supported by evidence and is binding on this court. Linley v. Hanson, 173 Colo. 239, 477 P.2d 453.
Defendant also contends that certain charges for computer and electro-tape rental used in connection with locating section corners were improperly included in the judgment. Under the terms of the contract, plaintiff agreed to survey the 50 lots for a flat fee per lot and agreed to locate and replace missing section corners for a flat rate of $19 per hour plus travel time and mileage. Thus, the charge of $778 for rental of a computer and an electro-tape used in locating the missing corners must be excluded from the judgment.
The judgment is modified by subtracting $778 therefrom and, as modified, is affirmed.
SILVERSTEIN, C.J., and PIERCE, J., concur.