Opinion
April 23, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 1268
Robinson & Westman, Peter A. Robinson, Denver, for plaintiff-appellee and cross-appellant.
Pferdesteller, Vondy, Horton & Worth, P.C., Fred W. Vondy, Denver, for defendant-appellant and cross-appellee.
RULAND, Judge.
Both parties appeal from a judgment of the trial court entered relative to a contract for construction of a residence. We affirm.
The parties entered into a written contract whereby plaintiff agreed to sell defendant a lot and construct upon it a residence according to plans selected by defendant. Defendant made a down payment of $500, but his obligation to pay the purchase price was contingent upon obtaining a Veterans Administration (VA) loan.
When the new residence was ready for occupancy but prior to final approval of the construction by the VA, defendant and his family were permitted to move into the house. The parties orally agreed that defendant would pay interest on the construction loan obtained by plaintiff and property taxes during the period of occupancy until closing could take place. Thereafter a representative of the VA made a compliance inspection, found nine construction defects in the residence, and required that these be corrected and a reinspection made before final approval of defendant's loan. Both parties then engaged experts to determine what repairs were necessary and the proper methods by which the repairs could be accomplished. The parties were unable to agree on the extent of the repairs necessary, and plaintiff filed the present suit. In his amended complaint, plaintiff requested rescission of the contract by reason of defendant's default in payment, together with judgment for the interest and taxes due pursuant to the oral agreement of the parties, or, in the alternative, a reasonable rental on the residence for the period of occupancy by defendant. Defendant counterclaimed on the grounds that his inability to obtain the VA loan and thus pay plaintiff resulted from plaintiff's failure to construct the residence properly. Defendant requested damages, or in the alternative, specific performance with abatement in the purchase price in an amount equal to the cost of repair.
Following a trial to the court, the court found: (1) The construction contract was executory because neither party fully performed his obligation thereunder; (2) defendant was unable to obtain the VA loan because of the defects in construction and the loan commitment had expired; and (3) the disagreement between the engineers who testified was such that the court could not determine what repairs were necessary to correct the defects. The trial court therefore concluded that under these circumstances it could not grant specific performance and awarded damages to defendant in the amount of $2,100 (being the difference between the value of the residence as constructed and its value had it been properly constructed) plus the down payment made by defendant to plaintiff of $500. The trial court also awarded $3,021.83 to plaintiff representing interest and taxes due pursuant to the oral agreement of the parties for the period of time the residence was occupied by defendant through the date of judgment. Defendant was ordered to surrender possession of the residence to plaintiff within sixty days from the date of judgment.
Following entry of judgment, motions for new trial were filed by both parties, and defendant applied for stay of execution on the judgment. The trial court granted the stay subject to deposit in the registry of $202.34 by defendant on the first day of the month, for each month that defendant occupied the residence.
Defendant prosecutes his appeal contending the trial court should have awarded defendant specific performance, with an abatement in the purchase price for the cost of repairs to the residence. In support of this contention, defendant asserts that expert witnesses for both parties were in agreement that the defects in construction could be cured; the difficulty stemmed from disagreement as to the proper procedure for curing the defects. Thus, defendant assert, in effect, that the trial court erred in its finding that the evidence was inadequate to show what repairs were necessary and hence the cost of such repairs.
Defendant has certified to this court as the record on appeal only the pleadings, exhibits, and a transcript of the testimony of two witnesses. However, plaintiff asserts and defendant's motion for new trial reflects that the testimony of at least five witnesses pertains to the specific issue he now raises. Under these circumstances, since defendant did not certify all portions of the record relating to the trial court's finding, we must conclusively presume that the evidence supports the trial court's finding that it was not possible to determine what repairs were necessary. C.A.R. 10(d); See Uptime Corp. v. Colorado Research Corp., 161 Colo. 87, 420 P.2d 232; Oman v. Morris, 28 Colo.App. 124, 471 P.2d 430. Therefore, defendant's relief was limited to damages which the trial court granted and defendant takes no issue here as to the manner in which those damages were calculated.
In his cross-appeal, plaintiff contends the trial court erred in not requiring defendant to pay interest and taxes based upon the prior oral agreement of the parties for the period of time following entry of judgment until the stay of execution was granted. We disagree. According to plaintiff's amended complaint, the oral agreement was to be effective until closing of the written construction contract. The judgment having terminated the written contract, we find no legal basis for extending the oral agreement beyond the date of the trial court's judgment.
Plaintiff also requests that we remand the case to the trial court with directions to enter judgment distributing funds to plaintiff that were paid into the registry in conjunction with the stay of execution. The trial court has not ruled on distribution of these funds, and such ruling is a prerequisite to any decision of this court relative thereto. See Stone v. Chapels for Meditation, Inc., Colo.App., 519 P.2d 1233, announced March 5, 1974.
The judgment of the trial court is affirmed.
ENOCH and PIERCE, JJ., concur.