Opinion
Nov. 26, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
David Burnell Smith, John E. Kochel, Littleton, for plaintiffs-appellants.
Henry & Henry, Hubert D. Henry, James C. Henry, Lakewood, for defendant-appellee.
VAN CISE, Judge.
Plaintiffs Donald L. and Gale L. McConico, homeowners, sued defendant Crisp & Sons, Inc., a contractor, for damages from alleged breach of contract and fraud incident to the remodeling of their house. Defendant counterclaimed for a balance due on the contract. After trial to the court, judgment was entered for defendant on plaintiffs' complaint and for plaintiffs on defendant's counterclaim. Plaintiffs appeal. We affirm.
The evidence at the trial was in conflict as to whether the work had been performed and whether it had been performed in a workmanlike manner, on what the final contract was and whether the full amount had been paid, and on whether there had been an agreement for the payment of and acceptance of a lesser amount than the full contract price in settlement of all claims against the contractor.
The trial court's findings of fact and conclusions of law are sufficient under C.R.C.P. 52(a) to enable us to determine the basis of its decision. See Hipps v. Hennig, 167 Colo. 358, 447 P.2d 700. This decision was based on a finding that the parties had entered into and carried out a new agreement, i.e., an accord and satisfaction.
Plaintiff asserts that a judgment based on accord and satisfaction, an affirmative defense not pled, must be reversed. We do not agree.
Defendant did not plead accord and satisfaction as an affirmative defense as required by C.R.C.P. 8(c), nor did it ever move to amend its pleadings to include this defense. However, there was testimony on each side of this issue, elicited by both parties and received without objection, both as to the amount plaintiffs paid defendant and on whether there was a settlement based on a discount. It is therefore apparent that the issue was tried by consent of the parties. Under this state of the evidence, the provisions of C.R.C.P. 15(b) apply, specifically:
'When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.'
'This being the situation, it is of no legal significance that the trial court entered judgment on a 'theory' different from the 'theory' pled in the complaint (or answer),' Radinsky v. Weaver, 170 Colo. 169, 460 P.2d 218. See also Great American Insurance Co. v. Ferndale Development Co., Colo., 523 P.2d 979; Dreiling Motor Co. v. Shultz, 168 Colo. 59, 450 P.2d 70.
Since there was competent evidence to support the court's finding of an accord and satisfaction, we affirm.
PIERCE and RULAND, JJ., concur.