Opinion
Rehearing Denied May 9, 1972.
A. L. Overton, Englewood, for plaintiff-appellee.
Costello, Kofoed & O'Donnell, David L. Kofoed, Denver, for defendant-appellant.
COYTE, Judge.
Plaintiff brought suit against defendant personally for the balance due on two contracts for lease of equipment made out to Hollister Construction Company and signed by defendant. Trial was to the court. Defendant appeals from judgment for plaintiff.
The parties entered into two separate contracts, one in March and one in June of 1964. The defendant, doing business as Hollister Construction Company, incorporated his business on April 30, 1964. Both contracts were on identical forms prepared by plaintiff. Both had a check mark in the box designated for proprietorship, as opposed to partnership or corporation designation. The end of each contract had the following provision for signature:
"Lessee____________________
By ____________________
Title ____________________"
Both were signed 'David G. Hollister' in the 'By' space with the name of the company omitted on the 'Lessee' line, and no title designated on the 'Title' line. The June contract had a large 'X' bisecting on the 'By' line just to the right of the word 'By.' The plaintiff's representative who had negotiated the contract testified that he assumed that he was dealing with a company rather than with the defendant individually. In his appeal defendant alleges: (1) that the court erred in finding defendant personally liable on the second contract; and (2) that plaintiff did not adequately prove the damages awarded. We disagree with these allegations and affirm.
Defendant contends that he was not to be personally liable on the second contract. He did not attend the trial or testify, but relies on the location of his signature on the 'By' line of the contract, and the testimony of plaintiff's representative.
The purpose of the 'X' preceding the signature on the second contract was disputed by the parties, but its significance is diminished by the fact that both contracts were signed on the 'By' line. Secondly, plaintiff's representative had no control over approval of transactions and was not concerned with the status of the lessee. His testimony does not necessarily establish that plaintiff intended to deal with the company as a corporation rather than as a proprietorship. Finally, the square on the face of the contract showing proprietorship was checked on both contracts. There was no testimony or showing that this square was checked at any other time than when the contract was signed.
In addition, plaintiff presented testimony that it relied upon defendant's individual financial statement in extending credit and that plaintiff did not know that defendant had incorporated prior to the second contract. Since the defendant, in a transaction with a former personal creditor, did not give notice, by signature or otherwise, that he was acting on behalf of a corporation, the court did not err in finding that defendant is personally liable under the terms of the contract. Conner v. Steel, Inc., 28 Colo.App. 1, 470 P.2d 71.
The defendant asserts that the plaintiff failed to prove the amount of damages awarded. In addition to the provisions of the lease contracts, plaintiff introduced evidence as to the ledger balance and as to plaintiff's efforts to mitigate damages. A determination of the amount of damages was a matter resting within the discretion of the trial court and when, as here, there is evidence to support its findings as to the amount of damages, this finding will not be disturbed on review. Linley v. Hanson, Colo., 477 P.2d 453.
Judgment affirmed.
ENOCH and PIERCE, JJ., concur.