Opinion
May 19, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
William H. Prendergast, Denver, for plaintiffs in error.
Van Cise, Freeman, Tooley & Eason, Charles Goldberg, Denver, for defendant in error.
DWYER, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
This is an action in contract brought by defendant in error J. D. Industrial Insulation Company, hereinafter called plaintiff, against plaintiffs in error, United Mechanical Contractors, Inc., hereinafter called defendant, and American Employers' Insurance Company, the surety on defendant's bond.
Plaintiff furnished the labor and materials to install insulation on the heating lines at a condominium at Vail, Colorado, pursuant to an oral contract with defendant, a sub-contractor of part of the construction work. Plaintiff maintained that it initially agreed to install insulation on the heating lines in the boiler rooms and the piping in the tunnels; that in addition it later agreed to furnish labor and materials for insulating the lines in the closets and laundry rooms; that defendant agreed to pay plaintiff its actual cost of labor and materials plus 10% Overhead and 10% Profit; and that on this basis defendant was indebted to plaintiff in the sum of $2820.00.
Defendant admitted that the insulation work was installed by plaintiff, but contended that all of the work was part of the original agreement and that plaintiff had agreed to do this work for $700.00.
The case was tried to the court. Both parties presented testimony supporting their contentions concerning the terms of the oral contract, the scope of the contract and the basis upon which plaintiff was to be compensated. The trial court resolved these disputed issues of fact in plaintiff's favor and entered judgment against both defendants for the full amount claimed by plaintiff.
Defendants allege here (1) that the court's determination of the amount of the damages was in error; (2) that the court's determination of the scope of the contract was based on hearsay evidence; and (3) that the court erred in admitting plaintiff's exhibit 'B'. The defendant surety company asserts no separate ground of error.
The determination of the amount of damages was simply a problem of arithmetic after the court determined that plaintiff was entitled to recover its actual expenditures for labor and materials plus 10% Overhead and 10% Profit. The amount of the judgment is correct.
Defendant contends that the court's determination of the scope of the contract between the parties was based on hearsay evidence. While plaintiff's foreman and crew were at Vail installing the insulation on the heating pipes in the boiler rooms and in tunnels as originally agreed, the general contractor told the foreman that he also wanted insulation installed in the piping in the closets, hallways, and storage areas. The foreman gave this information to the plaintiff's president. The president then talked to the president of defendant company and they agreed that the additional insulation would be installed. Conversations between the general contractor and the foreman and conversations between the foreman and the president of plaintiff were hearsay. The trial court attempted to exclude all such conversation but some evidence of these conversations does appear in the record. However, the court's findings are not based upon this hearsay, but upon the conversations between the presidents of the two companies. In a trial to the court, where the findings of the court are supported by competent evidence, it is presumed that hearsay evidence was disregarded by the court in reaching its conclusions and a judgment will not be reversed because of the admission of such evidence. Howard v. International Trust Co., 139 Colo. 314, 338 P.2d 689, cert. denied, 361 U.S. 916, 80 S.Ct. 258, 4 L.Ed.2d 184.
Defendant finally contends that it was error to admit plaintiff's exhibit 'B' into evidence. Exhibit 'B' is the cost sheet on which plaintiff recorded its expenditures for labor and materials on this job. The exhibit itemized materials purchased, name of employee and the amount earned by employee, amount paid employee for room, board, travel and health, welfare and pension benefits. The court found that exhibit 'B' was kept in the regular course of business under the personal control and supervision of the plaintiff's president; that the entries were made by the bookkeepers from employee time cards and suppliers' invoices and that it was a record of 'original entry.' A proper foundation for the admission of exhibit 'B' was established by the evidence and it was properly received. See Hobbs v. Breen, 74 Colo. 277, 220 P. 997.
The case of Seib v. Standley, 164 Colo. 394, 435 P.2d 395 cited by defendant is clearly distinguishable. The exhibit rejected in the Seib case was not a record of original entry but was a summary of information taken from the books of account which were not in evidence.
Plaintiff assigns as cross-error the court's refusal to tax as costs plaintiff's deposition expense. The Colorado Supreme Court has ruled that the expense of discovery depositions is not an allowable item of costs. Morris v. Redak, 124 Colo. 27, 234 P.2d 908.
Plaintiff also asks that damages in consequence of the delay occasioned by this writ of error be assessed against defendant. This was not a frivolous appeal and defendant duly prosecuted the writ of error. Plaintiff's request for damages for delay is denied.
Judgment affirmed.
SILVERSTEIN, C.J., and ENOCH, J., concur.