Opinion
Rehearing Denied Oct. 30, 1973.
Clarke W. Karr, Denver, for plaintiff-appellant.
Michael T. Vaggalis, Denver, for defendants-appellees.
SILVERSTEIN, Chief Judge.
In an action to foreclose a mechanic's lien claim, judgment was entered in favor of plaintiff. The plaintiff, Belmont Electric Service, Inc., appeals from the judgment, asserting that the amount of its judgment was inadequate and that the trial court erred in failing to enter a decree of foreclosure of its mechanics' lien. We modify the judgment by increasing it in the amount of $1,095 and by directing entry of a decree of foreclosure of the mechanic's lien in the amount of the modified judgment. The defendants comprised a joint venture which was organized to build a condominium at Vail, Colorado. Defendant Dohrn acted as the agent for the other defendants on the project. As part of its claim, Belmont sought judgment for the reasonable value of the electrical system work, labor and materials furnished in the construction of the condominium, claiming a balance due of approximately $20,000. Defendants asserted that the work was done under a fixed price contract and that Belmont was paid in full. Belmont denied that such a contract existed. Following a trial to the court, the court entered findings in which it determined that the electrical system work was done pursuant to a contract, that certain extra electrical system work had been ordered and performed, and that there was a balance due to Belmont of $3,889.73. Judgment was so entered.
On appeal Belmont asserts that the trial court erred in finding that there was a fixed price contract between the parties, and further that if that ruling is correct, the court erred in not reimbursing Belmont for wages paid for overtime work, and for additional work performed at the request of defendants.
The record discloses that, in response to a request by defendants, Belmont designed the entire electrical system for the project and submitted a bid for installing the system and that the bid was accepted and work performed thereunder. It is further clear from the record that, until a dispute arose over extras, the parties themselves treated their agreement as a fixed-price contract. The demonstrated intent of the parties prior to any dispute is binding on them and the court. Deeb v. Canniff, 29 Colo.App. 510, 488 P.2d 93. The trial court was correct in determining that the electrical system work was performed pursuant to the contract.
The evidence relative to the alleged extras including overtime, with the exception hereinafter noted, was in conflict. The findings of the trial court on these items, some of which it allowed and some denied, are supported by the evidence and will not be overturned. Linley v. Hanson, 173 Colo. 239, 477 P.2d 453. The items allowed, together with an amount determined to be due on the contract, totalled the amount of the judgment, $3,889.73.
Belmont also asserts the court erred in not allowing its claim for $1,095 for labor and materials furnished in work done on the project's heating system. The record discloses that, at Dohrn's request, Belmont undertook to complete the installation of the heating system following default by the heating subcontractor. This work was not within the ambit of Belmont's electrical contract, and Belmont was entitled to recovery of the above amount. Neither the fact that the defaulting contractor was paid prior to his default, nor the default itself served to defeat Belmont's claim for labor and material so provided. Kobayashi v. Meehleis Steel Co., 28 Colo.App. 327, 472 P.2d 724. The trial court erred in not reimbursing Belmont for this extra work.
Defendants asserted that Belmont had forfeited its lien rights under the provisions of C.R.S.1963, 86--3--23. Although the trial court correctly found that Belmont had not filed the lien with intent to cheat or defraud and that, therefore, the provisions of the statute were inapplicable, the court neither granted nor denied Belmont the right to enforce its mechanics' lien. Belmont is entitled to a lien in the amount of the judgment.
Belmont asserts that it was error for the trial court to deny oral summation at the close of the six-day trial and to deny oral argument on its motion for a new trial. This argument is without merit. Summation at the close of trial to the court is a matter of sound discretion, not of right. Similarly, the question of permitting oral argument on a motion for a new trial is also discretionary. C.R.C.P. 59(f). Here there was no abuse of discretion and the rulings will not be disturbed. Moseley v. Lamirato, 149 Colo. 440, 370 P.2d 450. The judgment of the trial court is modified and, as so modified, affired, and the cause is remanded with directions to increase the amount of the judgment in the amount of $1,095 and to enter a decree of foreclosure of the mechanics' lien in the amount of the judgment, on the property described in the complaint.
COYTE and PIERCE, JJ., concur.