Opinion
Dec. 11, 1973.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 1147
Dawson, Nagel, Sherman & Howard, James E. Hautzinger, S. Chandler Visher, Denver, for plaintiffs-appellants.
Inman, Flynn & Coffee, P.C., Robert D. Inman, Timothy A. Correll, Denver, for defendants-appellees.
SMITH, Judge.
In 1969, plaintiff and defendant corporations entered into an exploration agreement under which defendants promised to perform certain geologic mapping on plaintiffs' properties in return for plaintiffs' promise to pay defendant corporation $60,000. Disputes between the parties culminated in the filing of this damage action by plaintiffs against defendants for breach of contract. Defendants counterclaimed for recovery of the contract price. Prior to trial, the parties entered into the settlement agreement at issue on this appeal, and stipulated that the suit would be dismissed upon performance of the terms of that agreement.
Under the settlement, defendants promised to make a total of 41 specified alterations on the maps and reports prepared under the exploration agreement and to provide additional maps and materials. In return, plaintiffs promised to pay $18,500 in addition to the payment of $13,879 already made under the exploration agreement. Defendants' tendered performance under the settlement agreement was refused by plaintiffs. Defendants then amended their original counterclaim to allege breach of the settlement agreement and prayed for recovery of the full contract price.
In performing the original agreement certain inadequacies in pre-existing United States Geological Survey maps had caused Bullock to create two sets of maps covering, in some respects, the same geographic areas. However, also because of distortions in the USGS maps, the geologic information conveyed by the two sets of maps relative to the duplicated areas was not in complete conformity. Paragraph 1(h) of the settlement agreement was in tended to require defendant to bring the information in these two sets of maps into conformity, and this appeal is concerned with the fact that defendants did not comply with this term of the settlement agreement.
At trial, plaintiffs denied contract liability on the theory that the contract had been materially breached. Defendants, while admitting that the two sets of maps were not in conformity, urged that the variations were insubstantial, and that the contract therefore should be considered fully performed. Alternatively, they argued recovery of the full contract price should be permitted either by virtue of the doctrine of substantial performance, or because impossibility of performance relieved defendants of any necessity to perform further and entitled it to full payment.
The trial court's amended findings of fact and conclusions of law state as follows:
'The Court finds that the provisions of paragraph 1(h) (the term at issue here) have been complied with insofar as possible.
'The maps involved in this controversy are professionally sufficient and usable in the plaintiff's work.
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The defendant, Bullock Engineering, Inc., has complied with the provisions of the settlement agreement insofar as is possible, and hence, judgment should be entered in favor of said Defendant . . ..'
Plaintiff urges that the trial court's findings of fact and conclusions of law, as stated, do not support the judgment for full recovery of the settlement agreement contract price. We agree.
It is well established law that where the promisor has tendered full performance he is entitled to the full contract price. Little Thompson Water Association v. Strawn, 171 Colo. 295, 466 P.2d 915. Where the promisor has tendered substantial performance, he is entitled to recover the contract price less those expenditures required to complete the performance bargained for. Little Thompson Water Association v. Strawn, Supra. Where the promisor has rendered part performance and is discharged from the duty of further performance by the impossibility of rendering it, he can recover the value of the part performance rendered. Restatement of Contracts s 468.
In the present case, defendants admit that the two sets of maps do not conform with the agreement and that paragraph 1(h) has not been complied with. There was no finding by the lower court that the variance was so slight as to be tantamount to full performance, and under the facts and circumstances of this case, such a finding would not be in conformity with the evidence. The court therefore erred in granting defendant recovery of the full contract price.
It is unclear from the trial court's finding of facts and conclusions of law whether defendants substantially performed the settlement agreement or whether his duty was discharged by the impossibility of rendering further performance. However, in either case, judgment for the full contract price was improper. We therefore reverse the judgment and remand the case for clarification of the findings and conclusions of law and for such further proceedings as may be necessary to determine the proper amount to which defendants are entitled under the applicable rules of law as expressed herein.
Judgment reversed and cause remanded with directions.
COYTE and PIERCE, JJ., concur.