Opinion
June 23, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 698
David W. Sarvas, L. L. Nathenson, Lakewood, for plaintiffs in error.
Holley, Boatright & Villano, Gerald E. Boatright, Wheat Ridge, for defendants in error.
Before COYTE, DWYER and ENOCH, JJ.
COYTE, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
This case involves a dispute between the plaintiffs in error, E. P. Harrington and A & E Builders, Inc., and the defendants in error, Arrow Supply Corporation and D. Lavern Welch, a vice president of Arrow, over a construction contract between the corporate parties. The contract provided that A & E Builders would construct a building for Arrow from the parts of two prefabricated steel buildings owned by Harrington at a cost to Arrow of $28,000.00 plus extras agreed to by both parties. The other parties though named have no interest in this appeal.
Numerous difficulties arose between the parties during the course of the construction of the building. As a result, A & E Builders left the job uncompleted after Arrow had advanced nearly $26,000.00 on the construction. Thereupon Arrow undertook the completion of the building. At the time of trial, Arrow had spent an additional $3,454.22 on extras in order to complete the building.
The parties before us were all joined as defendants in an action, which is no longer in issue, except as to the cross-claims of the above parties. Arrow and Welch sought damages from A & E Builders for breach of contract and damages from Harrington for false representations. A & E Builders cross-claimed against Arrow for materials furnished and labor performed under the contract and filed a second count for quantum meruit for work done and materials furnished. The trial court awarded Arrow and Welch a judgment of $1,684.22 on their cross-claims against Harrington and A & E Builders and dismissed the claim of A & E Builders and Harrington against Arrow and Welch. From this judgment the plaintiffs in error appeal.
Without citing cases in support of their position and without supplying us with folio reference to the record, they rely essentially upon two grounds of error:
(1) That the evidence supports neither the judgment against them nor the denial of recovery on their cross-claim; and
(2) That Harrington should not be liable individually for the judgment.
At trial, both sides presented contradictory evidence on many aspects of the trouble-plagued construction. Harrington testified that Arrow made numerous changes in the original plans, all of which increased the cost of the building. Welch testified, however, that many of the changes were required by defective materials supplied by A & E Builders and by the incompetency of some of its workmen. The issue was therefore one of fact. When there is sufficient evidence to support the findings and judgment of the trial court, they will not be disturbed on review. People ex rel. Dunbar v. Lee Optical Co. of Denver, 452 P.2d 21. In the present case, the court's judgment for Arrow was based on its findings that $1,770.00 of Arrow's additional expenses of $3,454.22 after A & E Builders left the job had been for expenses agreed to by both parties beforehand, so that the remainder ($1,684.22) represented Arrow's damages from A & E Builders' breach of its contract. These figures are supported by the record and we therefore affirm the judgment.
In its cross-claim against Harrington, Arrow alleged that he had made certain fraudulent misrepresentations and had personally damaged Arrow. The trial court, however, in giving judgment against both Harrington and A & E Builders, gave no indication as to the basis on which it predicated Harrington's individual liability and neither counsel supplied us with any folio numbers to support or to reject the judgment against Harrington. In the absence of any such finding, we must search the record to determine if the judgment is supported by the evidence.
The record discloses that the only misrepresentation which Arrow attempted to prove against Harrington was that he failed to inform it that his prefabricated buildings were encumbered by a chattel mortgage at the time Arrow and A & E Builders executed the construction contract. This allegation was completely refuted by Welch himself, who testified that he knew the steel buildings were encumbered when he signed the construction contract for Arrow.
The only other basis for holding Harrington liable on the judgment for the breach of contract by A & E Builders would be a finding that he agreed to become personally liable for obligations of A & E Builders. Condit v. Merritt Printing & Stationery Co., 67 Colo. 185, 184 P. 381. Such an agreement was neither alleged nor proven. The personal judgment against Harrington must therefore be reversed.
The judgment of the trial court is affirmed as to A & E Builders, Inc. and reversed as to E. P. Harrington with direction that the cause be dismissed as to him.
DWYER and ENOCH, JJ., concur.