Opinion
Nov. 2, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
Wagner & Wyers, Dean R. Vanatta, Denver, for plaintiff-appellant.
Berge, Martin & Clark, Bruce D. Pringle, Denver, for defendants-appellees.
ENOCH, Judge.
This action was brought by Hezlep Construction Co., plaintiff-appellant, to recover certain architect fees from defendants-appellees. Trial was to the court and judgment was entered for the defendants. We affirm.
Defendants owned a tract of land on which they desired to construct a grocery store building. Defendants, inexperienced in the construction field, contacted Hezlep, a contractor with 26 years of experience, who had built other grocery stores. Defendants furnished Hezlep rough sketches and specifications of the proposed building which had been prepared by defendants' prospective lessee. Hezlep expressed a desire to have the job and gave defendants a preliminary cost estimate of $135,000 to $145,000. This estimate was within the maximum limits set by the defendants and the evidence indicates that all parties anticipated that plaintiff would eventually construct the building. During the next few months, defendants held several meetings with Hezlep. During one of the later meetings, Hezlep recommended that an architect be employed to draw finished plans and specifications so Hezlep could give defendants a firm bid. Hezlep did employ and pay an architect who prepared plans and delivered them to Hezlep. Hezlep then submitted a firm bid of $176,000 which was rejected because it exceeded defendants' budget for the project. After further meetings between the parties, Hezlep suggested that defendants should submit the architect's plans to other contractors. This was done by the defendants and the two bids received were rejected as being too high. There were additional meetings between the parties to try to bring the cost down. All these efforts being in vain, the project was abandoned.
The parties agree that had the building been constructed by Hezlep or by another contractor using the architect's plans, Hezlep would have been entitled to reimbursement for the architect's fee. The disagreement is whether there was an express oral agreement between the parties that defendants would pay for the plans if the building was not constructed. Hezlep also sought restitution on the theory of quasi-contract or unjust enrichment. The trial court found against Hezlep on both theories.
I
We find no error in the trial court's determination that no oral agreement existed between the parties in which defendants agreed to pay for the plans. Witnesses for Hezlep testified there was such an oral agreement. Defendants testified there was no agreement. Where there is conflicting testimony the trial court's determination of facts must be sustained if, as in the present case, it is supported by competent evidence. Adler v. Adler, 167 Colo. 145, 445 P.2d 906; Whatley v. Wood, 157 Colo. 552, 404 P.2d 537.
II
We also affirm the trial court's finding that plaintiff was not entitled to recover under the theory of quasi-contract or unjust enrichment. The elements which must be proven to recover under this theory are enumerated in Dass v. Epplen, 162 Colo. 60, 424 P.2d 779:
'The essential elements of quasi contract are a benefit conferred on the defendant by the plaintiff, appreciation by the defendant of such benefit, and acceptance and retention by the defendant of such benefit under circumstances such that it would be inequitable for him to retain the benefit without payment of the value thereof.'
The trial court found that defendants received no benefit from the plans and specifications. This conclusion is supported by the evidence.
Hezlep contends his use of the architect's plans constituted a benefit to defendants entitling him to restitution. The record, however, shows Hezlep hired the architect so that he could submit a firm bid to the defendants. The architect testified that he looked solely to Hezlep for payment. There is no evidence that defendants would have hired an architect on their own. Defendants came to plaintiff for a bid within certain financial limits. They were not shopping for bids. Plaintiff was unable to come within the financial limits of defendants even with the aid of the plans and specifications. Under these circumstances no benefit to the defendants was shown.
Judgment affirmed.
DWYER and DUFFORD, JJ., concur.