Opinion
Rehearing Denied May 18, 1971.
Page 215
James T. Ayers and A. Daniel Rooney Aurora, for plaintiff-appellant.
No appearance for defendants-appellees.
COYTE, Judge.
In March 1967, J. H. Keeney & Co., Inc., entered into an agreement with the defendants to make and deliver 160 units of an electrical device known as a 'putt skee' mechanism. The price of each unit was $120. According to the terms of the order blank, signed by both parties, there was to be a 25% Deposit, with the balance due upon receipt of the invoice. Upon execution of the order, defendants paid J. H. Keeney & Co., Inc., $4800 as a deposit.
In June 1967, forty-six units of this device were delivered to defendants, followed by an invoice for $5520. No payment was made and J. H. Keeney & Co., Inc., assigned this account to the plaintiff, Ruth Bryan. She filed her complaint as assignee, alleging defendants owed $5602.80 (presumably $82.80 was interest) for these goods sold and delivered to them in June 1967. Defendants answered separately denying plaintiff's claim, and also filed a counterclaim for damages alleged to have resulted from slow delivery of the goods.
Trial was to the court, which found in plaintiff's favor in the amount of $720 plus costs. Defendants' counterclaim was dismissed.
Plaintiff appealed but defendants chose not to make an appearance. The issue raised by plaintiff deals with the amount of damages awarded, which is claimed to be inadequate.
The trial court reached the figure of $720 by subtracting the amount of the deposit (4800) from the invoice of the forty-six delivered units (5520). Plaintiff claims however that this was error because the true damages were in fact $5412. This figure was in plaintiff's pre-trial statement and was broken down as follows: First, $5520 for the forty-six units delivered in June 1967; second, $1680 for the fourteen units assembled but undelivered; and, third, $3012 for unused parts purchased for the manufacture of these units. After adding these three items, then deducting the $4800 deposit, plaintiff claims she was owed $5412 in damages.
The error assigned by plaintiff is the refusal of the trial court to decide the issue on the theory of contract, which plaintiff claims was fully stated in her pre-trial statement, and incorporated into the pretrial order, and therefore should have been controlling in this case. R.C.P.Colo. 16; Green Lawn Sprinkler Corp. v. Forsberg, Colo., 461 P.2d 22.
Conceding the validity of plaintiff's argument does not entitle her to $5412 in damages. Plaintiff's assignor sent only the one invoice and has in its possession the fourteen assembled units valued at $1680 which allegedly were and remain worthless for other purposes. The assignor also has the unused electrical parts valued at $3012 in its possession which allegedly cannot be used for other purposes or sold to other parties. The trial court found that plaintiff's allegation and evidence that these unused parts are not capable of being used or sold is contrary to the facts and found that no effort had been made by plaintiff's assignor to mitigate damages. Since the trial court acted as trier of the facts, we are bound by the findings where such findings are based on competent evidence. Ashback v. Wenzel, 141 Colo. 35, 346 P.2d 295.
On a contract theory, the maximum damages involved are $720. Since the trial court found that plaintiff had failed to substantiate her claim for damages on the fourteen undelivered units and the parts, plaintiff was only entitled to the cost of the delivered units less the $4800 deposit. Therefore, whether the claim rests on contract or for goods sold and delivered, the result remains the same.
Judgment affirmed.
SILVERSTEIN, C.J., and DUFFORD, J., concur.