Opinion
Thomas K. Hudson, Alice Loveland, Denver, for plaintiff-appellant.
Ireland, Stapleton, Pryor & Holmes, P.C., Robert C. Hawley, William C. Gorham, Denver, for defendant-appellee.
KELLY, Judge.
Plaintiff Oil Building Corporation (Building) appeals from a judgment ordering the Petroleum Club, Inc., (Club) to pay the Building $100 a month for certain utilities. We affirm.
In 1955, the Club leased from the Building the 12th and 13th floors of the Petroleum Club Building, as well as the roof area directly above. The lease provided for the Club's use of the roof area so long as this use did not increase maintenance, operating costs and taxes to the Building.
In 1960, the Club enclosed the roof area at its own expense. In June, a letter agreement was signed by the parties to supplement the lease. The letter provided for payment by the Club to the Building of utilities charges attributable to the 14th floor enclosure, not already metered directly to the Club, stating in one paragraph:
'As to any increase in the cost of public utilities service furnished to the proposed improvement which is not measured through a special meter and charged directly to the Club, the Club will pay all charges billed to (the Building) in excess of the average monthly charges to (the Building) for the period from August 1, 1958, to July 31, 1960, such excess to be billed monthly in an amount equal to the excess over the like month of the year 1959 but to be adjusted to the average mentioned above at the end of each calendar year's operation.'
The meaning of this language has been the source of controversy between the parties for over a decade.
In 1971, the Building sued the Club for over $30,000 which had allegedly accrued for additional utilities charges. The trial court granted partial summary judgment for the Club, concluding that the Club had paid all amounts due through November 30, 1970. This portion of the judgment has not been appealed. The parties then stipulated that 'the sole remaining issue to be tried' was the monthly amount due beginning December 1, 1970, for utilities charges attributable to the Club's use of the 14th floor, to be computed as provided in the quoted paragraph of the 1960 letter agreement. After trial, the court agreed with the Club's contentions and found that the parties intended the Club to reimburse the Building for those costs which were directly attributable to the Club's use of the 14th floor only and that $100 per month was the proper amount for these charges.
On appeal, the Building argues that: (1) The stipulation precluded reception of evidence to explain the surrounding circumstances and the parties' intent at the time the letter was signed; (2) the trial court's sole function was to supply the figures to be calculated as required by the 'formula' stated in the letter; and (3) the proper application of this 'formula' requires that the Club pay All utilities charges in excess of certain base period amounts for the entire Building since 1960. We find these arguments unpersuasive.
While we agree that parties to an action are limited to the issues to which they have stipulated, Frye v. Switzer, 145 Colo. 401, 359 P.2d 370, there was nothing in the stipulation between the Building and the Club precluding the reception of additional evidence to explain the meaning of the quoted paragraph of the 1960 letter agreement. On the contrary, the stipulation expressly provided that it did 'not preclude either party from offering whatever evidence it sees fit in connection with said paragraph.'
Where a document contains ambiguities or its language and meaning are unclear, it must be construed with reference to the intent of the parties. Leach v. LaGuardia, 163 Colo. 225 429 P.2d 623. Since the formula was ambiguous on its face, it was manifestly impossible for the trial court to resolve the remaining issue, namely, the monthly amount due under that paragraph, without reception of evidence to show the surrounding circumstances and the intent of the parties.
The trial court properly considered the evidence, and the testimony of the Club's engineers supported the finding that $100 a month was the proper amount to be paid by the Club under the agreement. There being evidence to support the trial court's findings, they will not be disturbed on appeal. Adler v. Adler, 167 Colo. 145, 445 P.2d 906.
Judgment affirmed.
BERMAN and VAN CISE, JJ., concur.