Opinion
Oct. 9, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
Moore, Francis & Van Domelen, P.C., James Holland Moore, Aspen, for plaintiff-appellee.
Dwight K. Shellman, Jr., & Associates, P.C., Aspen, for defendant-appellant.
ENOCH, Judge.
This is an appeal from a judgment against the defendant on his counterclaim for damages allegedly resulting from the breach of a construction contract. We affirm.
Plaintiff Ralph H. Woodward, Jr., (contractor) and defendant Rodney H. Jacobs (owner) entered into a contract to build a dwelling which the contractor indicated could be built for $40,000. While the parties applied for a permit to build a duplex as permitted by the applicable zoning, their underlying intention was to use the premises in violation of the zoning. They contemplated converting the master bedroom during the construction process into a third self-contained unit which the defendant would occupy or rent. The building was incomplete when the $40,000 which had been borrowed was exhausted, and shortly thereafter the contractor left the project with work still to be done. The owner borrowed an additional $10,000 and finished the triplex, renting out two units and occupying the third. Subsequently the contractor initiated an action against the owner for reimbursement of certain bills paid by him and for wages due him. The owner counterclaimed alleging first that the contractor had guaranteed a price of $40,000 and that he had failed to complete the job for that amount, and second, that some of the work of the contractor had been faulty.
At the conclusion of the evidence, the court found that the contract was illegal and that it had been entered into by the parties with knowledge of its illegality. Furthermore, it found that the contract was not severable and thus denied relief to both parties.
The dispositive issue is the propriety of the trial court's ruling that the contract was illegal and that thus the court should leave the parties as it found them. We conclude that the trial court's judgment was correct.
Prior to trial the parties entered into a stipulation which stated that the parties had agreed to make application for a permit for a two-unit building, but that during the course of construction the building would be converted into a triplex which would be illegal under the permit and that in furtherance of this plan, higher voltage wiring, plumbing for an additional kitchen, and additional appliances were installed. In addition, there is evidence in the record that the parties were aware that under the zoning a triplex would be illegal. Hence, there is ample support in the record for the court's finding that both parties were knowing, active participants in a plan of action which violated public policy, as pronounced in the county zoning resolutions.
Where a transaction is in violation of the plain terms of a statute and where the parties know they are violating the law, the
'courts will leave the parties where they find them, and will not lend their aid to enforce the contract or grant relief to one of the parties because of a violation of the terms of such contract by the other. Potter v. Swinehart, 117 Colo. 23, 184 P.2d 149.
See also Reed v. Bailey, 34 Colo.App. 20, 524 P.2d 80.
The owner argues that the trial court should have separated the cost of the work which turned the duplex into a triplex from the cost of building the duplex. He cites Reilly v. Korholz, 137 Colo. 20, 320 P.2d 756, for the proposition that if the illegal portion of the contract may be severed, the valid portion of the contract may be enforced. However,
'Where an illegal condition or promise on one side is a part of the consideration for the entire obligation on the other side, it is owing to the impossibility of determining the weight or extent of such portion of the consideration which moved to induce the engagement thereupon, that such void promise for consideration is held to be unseverable, and avoids the whole contract.' Giles v. DeCow, 30 Colo. 412, 70 P. 681.
There is no evidence which would enable the court to conclude that the ability to use the building as a triplex was not an integral part of the information of the entire contract, and furthermore, the evidence supports the trial court's conclusion that there is no ready basis for apportionment.
Judgment affirmed.
COYTE and BERMAN, JJ., concur.