Opinion
Dec. 4, 1973.
Editorial Note:
This case has been marked 'not for publication' by the court.
Robert W. Caddes, Denver, for plaintiff-appellant.
Barnes & Jensen, Gerald L. Jensen, Ronald J. Miller, Denver, for defendants-appellees.
COYTE, Judge.
Plaintiff, Simms Holding Corporation, appeals from entry of judgment for defendants, Wiesners, in an action for non-payment of rent. We affirm the judgment of the trial court.
The record discloses that the parties entered into a written lease on May 13, 1971, for a five-year term commencing on June 1, 1971. The Wiesners were to occupy the premises for the purpose of conducting a dry-cleaning establishment. At the time the lease was executed, the building was only partially completed. The exterior walls were erected but no interior walls, windows, or floors had been installed. A typewritten provision in the lease which was entitled 'Completion of Premises' stated that the lessor was to complete the demised area, including such things as lighting, carpeting, air-conditioning, and partition walls. An additional typewritten provision in the lease stated that the lessor was to provide an area for customer and employee parking.
The sum of $250 was paid on May 13, 1971, for the first month's rent in advance. Wiesners did not make any rental payments for the months of June through September and Simms brought suit for those rental payments. Wiesners denied liability for rental payments until October 1971 on the ground that the lessor had waived further rent payments until the building was completed.
Defendant James Wiesner testified that the lessor's representative stated that no further rental payments would be due until the building was completed. This testimony was corroborated by the realtor who represented the lessor in the transaction. Wiesner further testified that no demand for rent was made until September 23, 1971, and at that time he pointed out the unfinished items on the building.
After trial to the court, the court found that the lessor had agreed that no rent would be due until the building was completed and that the first request for rent was made in September. It further found that the improvements were not completed until the end of September and ruled that rent was not due until that time. On appeal, plaintiff contends that this ruling was erroneous. We disagree.
In People ex rel. Metzger v. Watrous, 121 Colo. 282, 215 P.2d 344, the court denied waiver as follows:
'(T)he essentials of (waiver) are, 'the voluntary abandonment or surrender, by a capable person, of a right known by him to exist, with the intent that such right shall be surrendered and such person forever deprived of its benefit.''
The issue of waiver is usually one of fact. Metropolitan Paving Co. v. Aurora, 449 F.2d 177 (10th Cir.); See School District v. Grant, 156 Colo. 328, 399 P.2d 101. Here, the evidence supports the finding that the demised premises were not completed until the end of September 1971 and that the lessor waived further rental payments until the premises were completed.
We have examined appellant's other assertion of error and we find it to be without merit.
The judgment of the trial court is affirmed.
PIERCE and SMITH, JJ., concur.
Judgment affirmed.