Opinion
July 3, 1973.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 933
George A. Hinshaw, Aurora, Irvin M. Kent, Denver, for plaintiff-appellant.
Frickey, Cairns & Wylder, P.C., Earl S. Wylder, Denver, for defendant-appellee.
ENOCH, Judge.
The Advance Press Corp., plaintiff-appellant, brought suit against Grant Chester, defendant-appellee, for damages resulting from an alleged breach of contract. The other four named defendants are not parties to this appeal. Following a trial to the court, judgment was entered in favor of Chester. We affirm the judgment.
This case arose out of an agreement reached on August 30, 1965, between Grant Chester and Melvin C. Albee, the president of Advance Press. The agreement provided, Inter alia, that Chester, a printer by trade, would establish an independent sales office in a part of a building that Advance Press had leased from the owner for a number of years. Chester agreed not to compete with Advance Press and to order material and printing work from Advance Press. Chester also agreed to pay $26 each weekday, holidays included, to Advance Press. Advance Press agreed not to establish another sales office for its products within a defined area surrounding Chester's office. Also, Advance Press undertook to furnish certain services, equipment, and expenses.
Performance under the contract began on September 1, 1965. Both parties operated for at least a month or longer under the agreement, and Chester made his daily payments until mid-december 1965. It was in December when disagreement between Albee and Chester reached the point that further performance under the agreement appeared to be impossible.
The amended complaint filed by Advance Press alleged that, although it had performed all conditions precedent to the agreement, Chester had breached the terms of the agreement such that Advance Press had suffered certain compensable damages. The court ordered that a judgment be entered in favor of Chester on the grounds that (1) the agreement does not contain the essential ingredients of a binding contract, and (2) the evidence did not establish any damages. Although we disagree with the court's conclusion that there was not a valid contract, we do agree that damages were not established by Advance Press, and therefore the judgment in favor of Chester must be affirmed.
The construction of a written instrument such as the agreement before us is a question of law; therefore, we are not bound by the finding of the trial court in this regard. Meier v. Denver United States National Bank, 164 Colo. 25, 431 P.2d 1019. The trial court found specifically that the agreement was lacking in mutuality. Substantiation for this lack of mutuality, which might more accurately be characterized as a mutual mistake, was isolated to (1) the conflicting tsetimony at the trial concerning the term 'lease' which was included in the text of the agreement, and (2) the specific nature of the property involved. The mere fact, however, that the parties differ in their interpretation of an instrument does not, of itself, create an ambiguity. Burns v. Burns, 169 Colo. 79, 454 P.2d 814. It is clear that both Chester and Advance Press began to operate under their agreement and continued to do so for some time. The conduct of the parties acting under a contract is a reliable test of their interpretation of that instrument. Nahring v. City and County of Denver, 174 Colo. 548, 484 P.2d 1235. When that test is applied to the case at hand, it is apparent that reasonable performance for an extended period of time was rendered under the terms of the agreement.
The trial court also held that a binding contract was not established because Advance Press had failed to show that all conditions precedent set out by the agreement had been performed. It is true that Advance Press made reference to conditions precedent in its pleading; however, applying well-established rules of construction, we conclude that the contract provisions designated as conditions in the pleadings were intended by the parties to constitute promises. See Charles Ilfeld Co. v. Taylor, 156 Colo. 204, 397 P.2d 748. The status of these provisions is not altered by their designation in the pleadings. See generally Maes v. Tuttoilmondo, 31 Colo.App. 248, 502 P.2d 427. Thus, proof of compliance with each of these provisions was not necessary, and we hold that a valid, binding contract was established. Whether the contract was actually breached and, if so, by whom, is not an issue before us.
In regard to damages, and assuming that there had been a proven breach of the agreement by Chester, the trial court found that the evidence presented by Advance Press was so vague as to fall short of proof. Advance Press does not deny that proof of damages was inadequate but contends that one reason the evidence is so vague is because the trial court erred in refusing to allow into evidence Albee's testimony concerning the fair and reasonable market value of Advance Press's business conducted at the location specified by the agreement.
While we recognize the rule that difficulty and uncertainty in determining the actual amount of damages should not deny the wronged party recovery, the party alleged to be damaged still has the initial burden of proving that damage was in fact sustained. Hyman v. Velsicol Corp., 123 Colo. 563, 233 P.2d 977. In its offer of proof to the court, Advance Press indicated that it would elicit testimony from Albee as to the fair market value of the business at that particular location. The trial court was correct in determining that this testimony would have been too vague in relation to alleged damages in this case. In Lockwood Grader Corp. v. Bockhaus, 129 Colo. 339, 270 P.2d 193, it was held that loss of profits from the destruction or interruption of an established business may be recovered if there is competent proof of those damages. The contract between the parties was, in effect, one for personal services, and therefore proof of the fair market value of the business or of gross receipts is not the correct measure of damages. The correct measure of damages is the loss of profits sustained by Advance Press resulting from the alleged breach by Chester. Advance Press was given the opportunity but failed in its burden of proof as to damages.
Although we find that there was a contract as a matter of law, there was nevertheless an insufficient proof of damages. Therefore, the judgment of the trial court is affirmed.
DWYER and SMITH, JJ., concur.