Opinion
Oct. 31, 1972.
Editorial Note:
This case has been marked 'not for publication' by the court.
Kreager, Sublett & Dowis, Charles W. Kreager, Sterling, for plaintiff-appellee.
Holme, Roberts & Owen, D. Craig Lewis, Donald K. Bain, Denver, for defendant-appellant.
COYTE, Judge.
Plaintiff brought suit against defendant (Brunswick), a former tenant of plaintiff, claiming that at the termination of the tenancy in 1968 defendant had wrongfully removed from the building certain property belonging to plaintiff. Defendant admitted removing the property but denied plaintiff's ownership of the property and the alleged value thereof. The case was tried to the court and judgment was entered in favor of the plaintiff and against the defendant in the amount of $8,930 plus interest thereon from the date of filing of the complaint and costs. Defendant appeals. We affirm the judgment of the trial court.
In 1962, plaintiff leased a building to National Bowlers Corporation, hereinafter NBC, for use as a bowling facility. Defendant sold bowling equipment to NBC and retained a chattel mortgage interest in such equipment. In constructing the building, the general contractor provided certain extra items among which were carpeting, an intercom system, and sales and control counters. The total cost of all the extra items was $21,048.85. Of this sum plaintiff paid $12,000 and NBC paid the balance.
The lease between plaintiff and NBC contained the following clause:
'Should Lessee desire additional facilities, such as carpeting, control counter, intercom system, etc., then and in that event Lessee agrees to pay, in addition to the base rent of $1,800.00 per month, a sum equal to one percent per month of the total cost to lessor of such additional facilities as installed. Said facilities and their installation shall be agreed upon in writing, and, from the date of installation thereof the additional rent provided for herein shall be considered to be and become a part of the base rent.'
Thereafter, plaintiff as lessor and NBC as lessee provided by an addendum to the lease, as follows:
'Lessor and Lessee agree that Lessor had installed carpeting, intercom system, and other additional facilities at a total cost to lessor of $12,000, as agreed to by Lessee. Said additional facilities were installed by Lessor and completed as of the date of possession set forth in Paragraph 1.3 of said Lease and from such date Lessee agrees to pay, in addition to the base rent of the $1,800 per month, a sum equal to one percent per month of said total cost, being the amount of $120 per month, and from said date of possession said additional rent of $120 per month shall be considered to be and become a part of the said base rent.'
NBC opened the bowling establishment in the fall of 1962 and operated it until the spring of 1965 when, due to NBC's financial difficulties, Brunswick took possession of the bowling equipment mortgaged to it by NBC. Brunswick then entered into a lease with plaintiff for the bowling premises and took over the opleration of the bowling establishment. NBC transferred its assets to Brunswick. Plaintiff released NBC of its obligations for back rent upon payment by Brunswick. Brunswick operated the bowling establishment until June of 1968, at which time it vacated the premises, removing all of its property as well as the property claimed by plaintiff (the carpet, the intercom system, the counter, and some miscellaneous items).
The issues on appeal are whether there was sufficient evidence of plaintiff's ownership of the property in question and, if so, whether the trial court applied the proper measure of damages and had sufficient competent evidence upon which to base the amount of damages awarded.
The evidence, documents and the reasonable inferences therefrom support the court's finding that the disputed property belonged to the plaintiff. Though there was other evidence which might be construed to support Brunswick's theory, the weight of the evidence and the credibility of the witnesses are within the province of the trier of facts. Byrne v. Stone & Birkle, Inc., 156 Colo. 445, 399 P.2d 940. Where, as here, there is evidence to support the findings of the trial court, such findings will not be disturbed on review. Fletcher v. Garrett, 167 Colo. 60, 445 P.2d 401.
To compensate the plaintiff for his loss, the proper measure of damages for the conversion of property is the value of that property at the time of conversion. Doenges-Glass, Inc. v. GMAC, 28 Colo.App. 283, 472 P.2d 761; Ferganchick v. Johnson, 28 Colo.App. 448, 473 P.2d 990.
Although the trial court here determined that defendant had in fact converted plaintiff's property, it was difficult for the court to determine the amount of plaintiff's damages. Since the purpose of awarding damages for converted property is to compensate the plaintiff for his loss rather than to deprive the defendant of his gain, the method used by the court in determining plaintiff's damages was reasonable and proper. The trier of fact must make a determination thereof based upon the available evidence. As stated in Peterson v. Colorado Potato Flake & Mfg. Co., 164 Colo. 304, 435 P.2d 237:
'. . . The rule which precludes the recovery of uncertain and speculative damages applies only to situations where the fact of damages is uncertain, not where the amount is uncertain. In Hyman and Co. v. Velsicol Corp., 123 Colo. 563, 233 P.2d 977, this court in discussing damages suffered by the plaintiff expressed the rule which we believe applies to the instant case. This court stated: 'Under the evidence the master found, and the trial court adjudged, that plaintiff had been damaged, although the exact extent thereof is not definite and certain. The rule is that damages based upon mere speculation and conjecture are not allowable; however, where it has been definitely established that damages are traceable to and the direct result of a wrong, the uncertainty as to the amount thereof is a question for determination by the trier of the facts. Any other rule would result in rewarding a wrongdoer.''
The court used the proper methods of measuring damages and, viewing the record in the light most favorable to the judgment entered by the trial court, which we are obligated to do on review, we hold that the evidence supports such judgment and it, therefore, will not be disturbed on review. American Irrigation Co. v. Fadenrecht, 30 Colo.App. 28, 489 P.2d 1060.
Judgment affirmed.
SILVERSTEIN, C.J., and DWYER, J., concur.