Opinion
March 2, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
In action by decedent's executrix against architect for structural engineering services performed by decedent for defendant on building which was never constructed, issue as to telephone conversation defendant had with plaintiff regarding his contract with decedent was immaterial as judgment was entered for value of services rendered rather than on contract theory.
Page 398
Schneider, Shoemaker, Wham & Cooke, Hugh R. Warder, Joffre Johnson, Denver, for plaintiff in error.
Bernard P. O'Kane, Lakewood, for defendant in error.
ENOCH, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
This is a quantum meruit case in which the defendant in error, Lillian Todd, sued the plaintiff in error, Hite, for services performed by her deceased husband, Norman Todd. The parties will be referred to herein according to their trial court designation.
Defendant, an architect, entered into a contract with Todd, a structural engineer, in January 1961, whereby Todd was to furnish his engineering services in the planning and design of an apartment building. Todd completed the structural design. However, the proposed building was never constructed due to the builder's failure to obtain financing. Defendant never received his anticipated architect's fee of $20,000, but did eventually receive $3,500 in the settlement of a law suit initiated by defendant against the builder.
Defendant paid Todd $250 in 1961 as partial payment for his services. Todd died on September 16, 1965, having received no further remuneration from defendant. Thereafter, plaintiff, Todd's wife and executrix of his estate, attempted to collect Todd's fee which she alleged to be $6,000 in addition to the $250 already paid. This action was initiated upon defendant's failure to pay the amount demanded.
Plaintiff's claim was based on alternate theories of contract and quantum meruit. Trial was to the court which awarded $5,062.50 to the plaintiff.
Defendant alleges error concerning the sufficiency of the findings of fact and conclusions of law of the trial court, the sufficiency of the evidence, the amount of damages awarded by the trial court, and its refusal to allow defendant's testimony with regard to his contract with Todd. We have examined defendant's allegations and find no error.
I
Defendant's first assignment of error is divided into three parts. Part one alleges that the findings and conclusions of the trial court are not clear enough to show the groujds upon which it reached its decision. We do not agree. The trial court made oral findings and conclusions at the close of the evidence and also made written findings and conclusions after taking the case under advisement. In doing so, the trial court not only gave the basis for its findings and conclusions, but also referred to specific evidence presented at trial in support of those findings. Defendant relies on Mowry v. Jackson, 140 Colo. 197, 343 P.2d 833, and Murray v. Rock, 147 Colo. 561, 364 P.2d 393, which hold that the trial court's findings must be extensive enough to give the appellate court clear understanding of the basis of the trial court's decision and to enable the appellate court to determine the grounds on which that decision was reached. Unlike the situations presented in the cases cited above, we are able to determine the basis of the trial court's decision in this case.
Though the trial court did not specify as to whether it found for the plaintiff on the contract theory or on the quantum meruit theory, this omission is not reversible error. The plaintiff's quantum meruit claim and the evidence presented to support it, sustain the trial court's judgment. Where the record shows that the trial court was silent as to the basis of its finding, in the absence of anything to the contrary, the presumption is that it was governed by proper rules and principles of law. Mehlbrandt v. Hall, 121 Colo. 165, 213 P.2d 605.
Part two of the first assigned error alleges that the findings and conclusions are defective because they do not discuss the affirmative defenses of laches, waiver and estoppel. The record shows an absence of any evidence to support waiver or estoppel. As to the defense of laches, a delay in prosecuting a claim does not itself constitute laches. In addition to the delay, there must be evidence that the position of the parties has changed, thereby making it inequitable to permit the enforcement of the claim. Norman v. Boyer, 111 Colo. 531, 143 P.2d 1017. The defense of laches is not available to one whose position is not changed by virtue of delinquency on the part of the opposing party. Seaton-Hayden Mines Co. v. Renshaw, 101 Colo. 342, 73 P.2d 999.
Defendant claims that he 'settled a $20,000 claim for $3,500 which he would not have otherwise done if plaintiff's decedent had presented defendant with a demand of $6,000 prior to his decease.' The record contains testimony to both refute and support the assertion that the deceased demanded $6,000 from defendant for his services. In any event, defendant's testimony shows that he had notice of the $6,000 claim prior to his settlement with the contractor for $3,500.
Part three of the first assigned error alleges that the custom in the engineering profession, where the building is not constructed, is that the structural engineer is entitled to 85% Of the engineering fee. The record shows that both plaintiff and defendant presented expert witnesses who testified as to the amount of the structural engineer's fee if the proposed building is not constructed. The testimony of one witness was directed more to the general practice in the profession as opposed to the other witness who stated that, in his personal opinion, he thought the engineer should be limited to a percentage of what the architect received. The trial court was the finder of fact and it chose to adopt the theory of one witness and not the other. As the trier of fact, its findings will not be disturbed on review where, as in this case, its findings are supported by adequate and competent evidence. Milner v. Ruthven, 116 Colo. 22, 178 P.2d 417.
II
The defendant asserts that there was insufficient evidence to support a finding that defendant promised to pay $6,250 to plaintiff's decedent or that defendant contracted to pay that amount. We agree that the evidence presented as to the amount of the contract was insufficient to prove a claim based on a contract theory. However, the evidence was sufficicent to predicate recovery on a quantum meruit basis.
III
The defendant alleges that the evidence was insufficient to support the findings and conclusions pertaining to the award. In so arguing, defendant states that since there was insufficient evidence to establish a contract, that recovery could only have been based on a quantum meruit theory. He then asserts that recovery under this theory can be based only upon proof of the reasonable value of the services. We agree with this assertion, but do not agree with defendant's claim that the court erred in entering its award.
As previously stated, both plaintiff and defendant presented expert witnesses who testified as to the amount of the structural engineer's fee if the building is not constructed. The testimony of these witnesses revealed that there were three alternative methods by which the fee could be determined.
The first method was based on a percentage of the architect's fee. Plaintiff's witness testified that the structural engineer's fee for a building which is constructed normally ran 15% Of the architect's fee and defendant's witness testified that he would have based the fee on 17% Of the architect's fee.
The second method was based on an hourly rate. Plaintiff's witness estimated that to do the job done by the deceased would take 360 hours and that he would have charged $10 per hour. Defendant's witness estimated the job at 100 hours and that he would have charged $8 per hour.
The third method for computing an engineer's fee was based on a percentage of the costs of the structure. Plaintiff's witness estimated the total cost of the building in question at $778,000. He further testified that in 1961, his firm generally charged 8/10ths of 1% To 1% Of the total cost of the building and that 9/10ths of 1% Would have been a fair fee in this instance. By this method, the fee would have been approximately $7,000. This witness later stated that the total structural engineering services fee should have been $7,000 if the building were completed and that 85% Of this amount should be charged if it were not built.
Defendant's witness agreed that 8/10ths of 1% To 1% Of the total cost of the building was a method commonly used to arrive at a reasonable fee for structural engineering services. He also presented an alternative method of computation based on a percentage of the cost of the structural engineering portion of the building. He testified that it was common for structural engineers to charge 3% Of the cost of the structural engineering portion of the building which in this case he estimated to be between $200,000 and $250,000. Computation by this method results in a fee range between $6,000 and $7,500.
The court found that a reasonable fee for the structural engineering services in this case would be between $6,750 and $7,000, tand that where the building was not constructed, the custom was that the engineer was entitled to 85% Of the total engineering fee. Considering the other evidence in the case, the court then concluded that a reasonable fee in this case was $6,250, the amount prayed for in the complaint. 85% Thereof resulted in a figure of $5,312.50. The court then deducted $250 which had been paid to arrive at its judgment of $5,062.50.
Defendant claims that the testimony of the two experts as to their estimates was incompetent in that their basic estimates or assumptions making up the final estimate were not definite enough. An estimate, as defined by Webster, is 'a value judgment that is often valid but incomplete, approximate or tentative.' See, also, National Mutual Fire Insurance Co. v. Duncan, 44 Colo. 472, 98 P. 634. Furthermore, 'Expert witnesses to value rarely are able to state exact values. Usually they give estimates.' Sibley v. Wallrich, 75 Colo. 421, 226 P. 152. Considering all of the testimony of the two experts, with respect to the fee, they agreed more closely on a fee based on the percentage of costs alternative, which the trial court chose to adopt in its findings. The finding of the trial court as to the testimony of expert witnesses is conclusive, unless clearly shown to be erroneous. Atencio v. Torres, 153 Colo. 507, 385 P.2d 659.
IV
Defendant further argues that the amount of damages awarded was excessive and not supported by the evidence, and that the award should have been based on a percentage of what the defendant received as the architect or on an hourly rate. As set forth above, the court chose to adopt the third alternative based on a percentage of the structure's cost. While this alternative resulted in the largest award, we find it was based on competent testimony and was not excessive.
V
Lastly, the defendant alleges that the court erred in refusing to admit the testimony of the defendant as to a telephone conversation with the plaintiff regarding his contract with her husband. Determination of this issue would be necessary if the judgment had been based on a contract theory; however, since judgment was entered for the value of the services rendered, this issue is immaterial.
Judgment affirmed.
COYTE and DWYER, JJ., concur.