Opinion
No. 22855.
Decided February 1, 1971. Rehearing denied February 22, 1971.
Action by mobile home trailer park corporation against water and sanitation district for damages for breach of contract to provide sewer service. Judgment for plaintiff.
Affirmed.
1. EVIDENCE — Copy — Written Minutes — Proof — Action — Sewer Service — Proposed Trailer Park — Only Way — Negative. Copy of written minutes is not the only way to establish that board of directors of water and sanitation district acted on mobile home trailer park's application to furnish sewer service to proposed trailer park.
2. Minutes — Corporate Meetings — Prima Facie. Minutes of corporate meetings are only prima facie evidence.
3. Parol Testimony — Proof — Occurrence — Corporate Meeting. Parol testimony is proper when necessary to prove what actions actually occurred at a corporate meeting.
4. WATER AND SANITATION DISTRICTS — Mobile Home Trailer Park — Breach of Contract — Sewer Service — Formal Writing — Jury Question — Board of Directors — Action — Authorization. In action by board of mobile home trailer park corporation against water and sanitation district to recover damages for breach of contract to furnish sewer service to proposed trailer park, with or without a formal writing, it was a jury question whether board of directors of district took the necessary action to authorize the contract between the parties.
5. INSTRUCTIONS, CIVIL — Implied Contract — Proper — Mobile Home Trailer Park — Water and Sanitation District. In action by mobile home trailer park corporation against water and sanitation district to recover damages for breach of contract to furnish sewer service to proposed trailer park, trial court did not err in instructing jury concerning implied contract; once sanitation district board's action regarding trailer park's application for sewer system was established by parol evidence, terms and conditions of contract could properly be implied by actions and oral statements of the parties.
6. APPEAL AND ERROR — Duty — Reviewing Court — Examination of Evidence — Favor — Prevailing Party. On appeal, reviewing court must examine the evidence in the light most favorable to the prevailing party.
7. WATER AND SANITATION DISTRICTS — Trailer Park — Damages — Breach of Contract — Sewer Service — Evidence — Action — Board — Application. In action by mobile home trailer park corporation against water and sanitation district for damages for breach of contract to provide sewer service, record reflects sufficient evidence to support jury finding that, despite lack of formal writings indicating action, board of water and sanitation district did act on application of trailer park.
8. Trailer Park — Sewer Service — Contract — Alternative — Lift — New Line — city — Failure to Approve — Obligation. Where mobile home trailer park corporation's evidence showed that contract with water and sanitation district for sewer service was in the alternative of either a lift system or the construction of a new line and city, whose approval was necessary failed to approve the lift system, held, under the circumstances, district was not thereby relieved of the obligation to furnish sewer service by the new line.
9. Trailer Park — Sewer Service — Easements — Evidence. Jury finding — that mobile home trailer park corporation suing water and sanitation district for breach of contract to furnish sewer service did furnish the necessary easements to reach the point of entry into the system — is supported by evidence.
10. CONTRACTS — Breach — Sewer Service — Water and Sanitation District — Trailer Park — Another District — Liability. Where, in action for defendant water and sanitation district's breach of contract to furnish sewer service to trailer park, damages had already been incurred by time another district was finally in position to offer sewer service, held, under the circumstances, defendant district could not escape liability on ground that trailer park accepted service from another district and waived any rights against defendant district.
11. DAMAGES — Breach of Contract — Failure to Furnish Sewer Service — Amount — Septic System — Loss of Rentals — Proper. In action by mobile home trailer park corporation against water and sanitation district to recover damages for breach of contract to furnish sewer service to proposed trailer park, award of $12,773.23 by jury was reasonable under the prevailing circumstances; especially where trailer park was forced to operate a septic system and to lose rentals due to space that septic tank took up.
Error to the District Court of Jefferson County, Honorable Martin C. Molholm, Judge.
Robinson, Tilton and Robinson, Wm. Hedges Robinson, Jr., for plaintiff in error.
Margaret R. Bates, for defendant in error.
This writ of error is brought by Alameda Water Sanitation District from an adverse jury finding in the trial court. The parties appear here in the reverse order from the trial. Plaintiff in error will be referred to as Alameda, defendant in error as Ridgewood. This is the second time this action has been before us. In the first instance, Alameda's motion for summary judgment was granted by the trial court and we reversed. Ridgewood Mobile Homes Park, Inc. v. Alameda Water and Sanitation District, 159 Colo. 178, 410 P.2d 641. Trial was subsequently had to the jury resulting in an award of damages for Ridgewood in the amount of $12,773.23 plus costs or breach of contract. We affirm the judgment of the trial court.
The facts in this case are complex, and the parties differ as to the weight and consequence to be given the evidence in the record. It appears that Alva Parmelee and his wife purchased all the stock in the Ridgewood Corporation in April of 1960. It was their intention to construct a mobile home park on the parcel of land owned by Ridgewood. In May of 1960, written application was made to Alameda to furnish sewer service to the proposed trailer park. This application is part of the record. On the reverse side of this application are places for action and approval of the Board of Directors of Alameda (hereinafter referred to as Board). These places have remained blank. There is also a letter signed by one Eggleston, the manager of Alameda, to Mr. Parmelee. It reads:
"TO WHOM IT MAY CONCERN:
"This is to inform you that sewer service to the Ridgewood Mobile Home Park, Incorporated is available through the Alameda Water Sanitation District."
There is additional evidence in the record indicating that Eggleston informed Parmelee that there were two possible methods of getting service to the property in question. One was a lift station into an existing system, the second was a proposed new line running close by the property. The lift station would require the approval of Denver since it had the right to reject any of Alameda's contracts. The new line was still in the planning stages. Parmelee testified that he was promised he would have service within three to four months by one method or the other. There was also testimony by the President of the Board that the application of Ridgewood was accepted by the Board and that the Board then accepted a deposit of $10,565 from Ridgewood. There was also evidence that this deposit was to cover engineering and construction costs, and tap fees.
Parmelee testified that after he had made the deposit Alameda continued to promise him service but also continued to delay performance of its agreement. When it became apparent to Parmelee that there would be some delay in getting the sewer system started, he installed a septic system which required him to personally carry the waste to a dumpage point by truck. This septic system took up room that could have otherwise been used by trailers. During this period, Parmelee had contracted with an engineering firm to install the lift system. Once the plans were complete, it was learned that Denver refused to go along with the plan; thus requiring its abandonment. A short time later, Ridgewood was able to acquire service from another district, after which this suit was brought.
I.
[1-4] Alameda's first contention is that as a matter of law no contract existed between the parties because there were no minutes introduced into evidence to show acceptance by the Board. Ridgwood's original application was placed into evidence. The reverse side of this application had spaces for Board action. These places are blank. During the trial, no minutes could be found showing Board action. The question before us is whether a copy of written minutes is the only way to establish that the Board in fact acted on Ridgewood's application. The law in this jurisdiction clearly establishes that it is not. Lewis v. People, 99 Colo. 102, 60 P.2d 1089; City of Denver v. Spencer, 34 Colo. 270, 82 P. 590. Minutes of corporate meetings are only prima facie evidence. Parol testimony is proper when necessary to prove what actions actually occurred. Therefore, with or without a formal writing, we hold that is was a jury question whether the Board took the necessary action to authorize the contract.
Alameda also argues that it was error to instruct the jury concerning implied contract. We do not agree that the instruction given was erroneous under the circumstances here. Once Board action was established by parol evidence, the terms and conditions of the contract could properly be implied by the actions and oral statements of the parties. Coulter v. Anderson, 144 Colo. 402, 357 P.2d 76; Greeley and Loveland Irrigation Co. v. McCloughan, 140 Colo. 173, 342 P.2d 1045; Andrews v. Costilla Ditch Co., 114 Colo. 317, 165 P.2d 188.
II.
Alameda contends next that the evidence in the record does not support the findings of the jury in deciding the various matters raised by Alameda. Under this assignment of error, we point out that we are bound by our case law to examine the evidence in the light most favorable to the prevailing party.
Alameda first alleges that there was insufficient evidence to establish Board action. The record indicates otherwise. One of the members of the Board testified:
"Q. And, as a matter of fact, Mr. Parmelee's application for service to the Ridgewood property was considered and passed on and granted by the Board of Directors of the District, was it not?
"A. It was accepted, passed on — accepted — I believe that's right."
Certainly, this testimony is sufficient to support a jury finding that the Board did act. There was additional evidence that the Board authorized Eggleston's letter and directed him to accept the deposit.
Alameda's second contention is that the evidence which establishes Alameda's agreement to serve was conditioned on Denver's approval and that since Denver did not approve the plans the agreement was unenforceable. This argument overlooks Ridgewood's evidence that the contract was in the alternative, that is, to serve either through the lift system or by the construction of a new line. Since Denver's approval only concerned itself with the lift system, the failure of Denver to approve that method did not relieve Alameda of the obligation to furnish sewer service by the new line.
A third point raised is that Ridgewood did not furnish the necessary easements to reach the point of entry into the system. Again, the jury could have believed Parmelee's testimony that Eggleston informed him that he (Eggleston) held the second required easement. Parmelee had the first. Although this testimony is otherwise unsubstantiated, if the jury chose to believe it, we will not substitute our opinion for theirs.
The fourth contention is that since Ridgewood accepted service from another district, they had abandoned any rights they had against Alameda. This is not the case. When the second District was finally in a position to offer service, the damages here awarded had already been incurred. At the time for which damage was claimed, the second district was not yet in a position to offer service.
III.
On the question of damages, it is the position of Alameda that Ridgewood lost nothing by the breach. We disagree. The jury must have accepted as true the proposition that when Ridgewood was forced to operate the septic system while waiting for Alameda to deliver, it lost rental value due to the space the system took up. There was evidence in the record that Parmelee had maintained trailer parks in the area before, and that he had no trouble renting out the remaining spaces on this lot while awaiting performance by Alameda. Thus, we hold that the amount of damages awarded by the jury was reasonable, and that lost rental value is a proper measure of damages to be considered.
The judgment is affirmed.
MR. JUSTICE GROVES not participating.