Summary
In Sundance Develop., Inc. v. Standard Lbr. Hard. Co. (Colo.App. 1974), 520 P.2d 1056, the owner of recently constructed tennis courts sued the contractor who installed fences around the courts after the fences were wind-damaged.
Summary of this case from Price Building Serv. Inc. v. ChristensenOpinion
No. 73-295.
Rehearing Denied February 13, 1974, Certiorari Denied April 15, 1974. April 2, 1974. Not Selected for Official Publication.
1. Appeal and Error 1024.1 Evidence 546
Question of sufficiency of evidence to establish the qualification and knowledge of a witness to entitle him to testify as an expert on a particular issue is to be determined in the first instance by the trial court and its decision is conclusive unless shown to be clearly erroneous.
2. Evidence 536
3. Contracts 280(3)
See publication Words and Phrases for other judicial constructions and definitions.
4. Contracts 322(4)
5. Customs and Usages 21
6. Contracts 322(4) Customs and Usages 19(3)
Tennis courts owner brought action against builder for breach of contract to construct fence around the tennis courts. The District Court, County of Arapahoe, Marvin W. Foote, J., granted builder's motion to dismiss and the owner appealed. The Court of Appeals, Coyte, J., held that witness who testified that he had little experience in the construction of fences around tennis courts was properly prevented from testifying as an expert witness; that evidence supported finding that work was done in a good and workmanlike manner; that evidence that, while, in some instances, tennis court fences were constructed with heavier pipe, in some instances structural tubing was used supported finding that owner did not establish a standard practice with respect to materials used in the construction of tennis court fences and that builder did not breach the contract by using structural tubing.
Affirmed.
John B. Howse, Denver, for plaintiff-appellant.
Banta, Banta Eitel, Richard J. Banta, Englewood, for defendant-appellee.
Sundance Development, Inc., (Sundance) brought suit against Standard Lumber and Hardware Company (Standard) for damages alleging a breach of contract by Standard to construct a fence around tennis courts owned by Sundance. At the conclusion of plaintiff's case, the trial court granted defendant's motion to dismiss and entered judgment for defendant. We affirm.
The record discloses that plaintiff and defendant entered into a written contract whereby defendant agreed to construct a fence around a tennis court for a price of $2,800. The contract contained the following language:
"All materials guaranteed to be as specified. All work to be completed in a workmanlike manner according to standard practices."
Despite the reference to specifications, the contract did not specify the nature of the materials to be used. After completion of the fence and payment of the contract price, plaintiff installed windscreens on the fence. These windscreens consisted of aluminum curtains approximately six feet in height with an open mesh. Thereafter, the fence sustained wind damage and was described as being bent and leaning.
Plaintiff requested that defendant repair the fence, and, when defendant refused to do so, plaintiff filed suit alleging that defendant failed to complete the fence in a "workmanlike manner according to standard practices." In essence, plaintiff argued that defendant used inferior materials in constructing the fence by using "structural tubing" rather than the heavier "Schedule 40 pipe."
On appeal, plaintiff contends that the trial court erred by excluding testimony of an expert witness and challenges the trial court's construction of the contract.
Plaintiff first contends that the trial court erred by refusing to allow one of its witnesses to testify as an expert on the construction of fences around tennis courts. The witness was the vice-president of a firm which constructs tennis courts throughout the country and was also president of his own consulting firm which advises others in matters of tennis court construction. In addition, the witness was involved in various national organizations engaged in setting minimum specifications for tennis court construction. However, he conceded that he had little personal experience in the construction of fences because, in his firm, work of that nature was performed by subcontractors. We disagree with plaintiff's contention.
[1,2] The question of sufficiency of the evidence to establish the qualification and knowledge of a witness to entitle him to testify as an expert on a particular issue is to be determined in the first instance by the trial court and its decision is conclusive, unless clearly shown to be erroneous. Starkey v. Bryan, 166 Colo. 43, 441 P.2d 314; Bridges v. Lintz, 140 Colo. 582, 346 P.2d 571. Here, the witness was generally knowledgeable with respect to tennis court construction, but he lacked knowledge and expertise in the matter at issue — construction of fences around tennis courts. Accordingly, we conclude that the trial court did not abuse its discretion by refusing to allow him to testify as an expert witness on that issue.
Plaintiff next contends that the trial court erred by ruling that installation of structural tubing was consistent with the contract language which stated: "All work to be completed in a workmanlike manner according to standard practices." Although the contract did not specify the nature of the material to be used, plaintiff asserts that defendant breached the contract by using a lesser grade pipe for fence posts. We disagree.
[3, 4] For construction to be done in a good and workmanlike manner, there is no requirement of perfection; the test is reasonableness in terms of what the workman of average skill and intelligence (the conscientious worker) would ordinarily do. Shiffers v. Cunningham Shepherd Builders Co., 28 Colo.App. 29, 470 P.2d 593. Since the evidence in the record supports the finding of the trial court that the materials installed were not defective, that finding will not be disturbed on review. Whatley v. Wood, 157 Colo. 552, 404 P.2d 537.
[5, 6] In addition, the parties expressly incorporated "standard practices" as a measure of the performance of the contract, and, thus, since that term was not defined in the contract, it was necessary to introduce parol evidence to determine the parties' intentions in this regard. See Ryan v. Fitzpatrick Drilling Co., Inc., 139 Colo. 471, 342 P.2d 1040. The existence of a standard practice is a question of fact. Universal Underwriters Ins. Co. v. State Automobile Casualty Underwriters, 108 Ariz. 113, 493 P.2d 495. Thus, in the instant case, it was incumbent upon plaintiff to show that the heavier "Schedule 40 pipe" was ordinarily and uniformly used in the construction of tennis court fences. However, the evidence reveals that, in some instances, tennis court fences were constructed with the heavier pipe, but, in other instances, structural tubing was used. Accordingly, the trial court's finding that plaintiff failed to establish a standard practice with respect to the materials used in the construction of tennis court fences is a finding supported by the record, and we will not disturb it on review. Whatley v. Wood, supra.
In light of the evidence and the findings of the trial court on these factual issues, we conclude that the trial court correctly ruled that the plaintiff failed to prove that defendant breached the contract.
The judgment is affirmed.
SILVERSTEIN, C. J., and SMITH, J., concur.