Opinion
Nov. 2, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
Harry M. Williams, Denver, for plaintiff-appellant.
Calkins, Kramer, Grimshaw & Harring, Russell P. Kramer, Melfred T. Gerszewski, Denver, for defendant-appellee.
COYTE, Judge.
This action involves a demand for an accounting made upon the defendant, Automatic Catering, Inc., by the plaintiff, Marjorie L. Stephens. From a dismissal of plaintiff's suit, she appeals.
The facts are these. In 1959, the defendant executed a 'Supplemental Pension Agreement' with the Milk Drivers and Dairy Employees Union No. 537. The purpose of this supplemental agreement, according to its first paragraph, was to clarify the pension agreement contained in a previously executed labor agreement signed by the same parties, which was never produced or offered into evidence. The supplemental agreement provided for payment of a fixed sum into the Western Conference of Teamsters Pension Plan, hereafter referred to as the 'Trust Fund.'
In 1961, plaintiff filed suit claiming she was assignee of the Trust Fund, and that defendant had failed to contribute to this fund as agreed upon and demanded an accounting. The defendant answered, admitting having signed the supplemental agreement, but denying that plaintiff was an assignee of the trust fund or that it was liable because of this supplemental agreement.
Trial to the court was not held until 1970. At the conclusion of plaintiff's evidence, both sides rested. The court then entered the judgment of dismissal, from which plaintiff has appealed.
At the outset we note that the judgment entered by the court below is extremely cursory, merely resolving the issue in defendant's favor instead of setting forth facts and conclusions of law as required by C.R.C.P. 52. Despite this failure by the trial court to fully comply with the rule, there is no reversible error since there were only two potential grounds available for a judgment of dismissal. A finding adverse to plaintiff on either ground would form a basis for dismissal in this action.
Since plaintiff was not an original party to the agreement, it was necessary for her to prove her status as an assignee of the trust fund. Otherwise, she would not be a real party in interest as is required by C.R.C.P. 17.
To prove the assignment, the plaintiff called the deputy administrator of the trust. He stated on direct examination that he had made the assignment to the plaintiff, but on cross-examination he testified that he had never met the plaintiff, that he was under the impression that he had made a written assignment to her, but neither he nor the plaintiff produced a copy of this assignment.
Trial was to the court. It was free to weigh the evidence and determine what, if any, credibility or weight should be attached to plaintiff's evidence, at the close of her case. Rowe v. Bowers, 160 Colo. 379, 417 P.2d 503. The evidence of an assignment is not so overwhelming as to require a finding in plaintiff's favor on this point. The trial court might well have concluded that the plaintiff was not in fact the assignee of the rights of the trust fund, and therefore was not a real party in interest.
But, even assuming the validity of the assignment, there exists an equally valid reason for dismissing plaintiff's complaint. The suit was brought by plaintiff for an accounting because of an alleged breach of agreement by defendant to contribute to a pension fund set up for employees of the defendant. To prove this allegation, plaintiff submitted what was designated as a Supplemental agreement, the stated purpose of which was to Clarify the pre-existing labor agreement.
It is obvious from the very language used in this supplemental agreement that it was not intended to supplant or replace the labor agreement, but rather was to complement that agreement. It was, therefore, meant to merge with the labor agreement and become part of the whole.
Any agreement or contract subject to a dispute before a court must be interpreted as a whole and not piecemeal. Brown v. Brown, 161 Colo. 67, 419 P.2d 444. If possible, each provision of the contract must be given effect. Gardner v. City of Englewood, 131 Colo. 210, 282 P.2d 1084. Therefore, the meaning and obligations found in a contract should not be based upon mere isolated phrases or clauses, because each provision of an agreement is subject to qualification by the other provisions of that contract.
Yet here, plaintiff has brought a suit based upon merely part of the whole contract. In attempting to establish her right to an accounting because of defendant's failure to carry out its part of the agreement, plaintiff did not produce the agreement itself, but merely the 'clarifying' statement intended on its face to be integrated within the whole agreement. The labor agreement, which this supplemental agreement was intended to clarify, has never been produced. Inasmuch as plaintiff's action is based upon contractual rights, her failure to prove the entire contract justified dismissal of the action.
Judgment affirmed.
SILVERSTEIN, C.J., and ENOCH, J., concur.