45 Colo. 562 | Colo. | 1909
delivered the opinion of the court:
This action by the contractors, under a builders ’ contract for doing brick work on a building, against the owners, is in the usual form, alleging its completion according to contract, and a failure of defendants to pay the balance due. The answer denied that the contract was performed, alleging the particulars wherein the work was unfinished, and denied that a balance was due. The answer also has two counterclaims, the first for $658.00, $600.00 of which is alleged to be due on account of delay in the completion of the building, for which there was a stipulation in the contract of liquidated damages of $25.00 a day, and $58.00 for defendants’°expenditures in completing the work on the building, which they were obliged to do, because, as they say, plaintiffs abandoned the. contract before all the work was done. The second counter-claim is for $500.00 alleged to be due as damages because defendants say one of the piers of the building is out of “plumb.” New matters in the answer were denied in the replication. Upon a trial to the court and a jury, there was a verdict for plaintiffs in the sum of $219.00. Defendants appealed.
It is substantially true that the numerous errors which have been assigned and argued by appellants cover almost every ruling of the trial court. To consider them in detail would unduly prolong the opinion. We shall discuss only a few propositions which we consider controlling, and not take up all of the prolix assignments. It is conceded that, if plaintiffs substantially performed the contract on their part, they were entitled to recover the sum of $315.00, less any cost to defendants for work they did after plaintiffs left the premises; Upon the con
The court withdrew from the jury the question of damages which defendants set up under their two counter-claims, upon the ground that, under the uncontradicted evidence, they were not entitled to recover. This ruling of the court is vigorously attacked by defendants, and presents the only important question.
The ruling with respect to the item of $600.00 for delay, set up in the first counter-claim, was, under the facts of the case, entirely proper. There was no controversy as to the item of $58.00 mentioned in that counter-claim, and the' jury evidently gave defendants allowance therefor. The contract contained a provision, if the brick work was not completed within forty working days, that • defendants should be entitled to a penalty of $25.00 per day for every day over that time, as liquidated damages. We think the brick work was substantially completed in accordance with the contract within the time specified. But if not, defendants, by availing themselves of another provision in the contract to complete the brick work themselves, which consisted of shoring up the building and remedying a pier that had' cracked, removing debris, &c., which consumed about a day and a half, at an expense of $25.00, and which was awarded to them by the jury as part of. the item of $58.00, havé lost the. right to claim damages for. delay. The contract provided that, if plain
The further point defendants mhke that they were not obliged to do the finishing work may, as an abstract proposition, be true. But defendants elected to avail themselves of the right and did, as a matter of fact, complete- the entire contract, brick work and other things, as they say, at a total cost of $58.00.' They are not in a position to insist that they were not obliged to make the election. Having done so, and having recouped for the expenditure ' which they made and having had the same allowed them by the jury, they cannot now be- heard to say that the plaintiffs abandoned the contract on their part.—Murphy v. Buckman, 66 N. Y. 297,
In addition to the foregoing, it is fitting to say that under the evidence, we do not see how the verdict could have been otherwise, unless it should have been for a larger sum for plaintiffs. In no event, even under the evidence produced by defendants themselves, could a verdict or judgment in their favor be allowed to stand. Affirmed.