In this diversity case, Republic National Life Insurance Company appeals the trial court’s award of $270,480 in damages to Red Lion Homes, Inc. for breach of contract. Republic owned a tract of land near Loveland, Colorado, part of which consisted of 92 undeveloped lots. In January 1972 Republic and Red Lion signed an agreement for Republic to convey the lots to Red Lion “on or before November 1,1972.” Republic was required to install аll on-site and off-site improvements, including curbs, sewer and water extensions, street lighting, grading, and paving prior to the conveyance. The contract was expressly made contingent on annexation of the lots by the City of Loveland and approval of the lots by the FHA and the VA.
Republic hired an engineering company to oversee completion of the improvements. Various delays occurred, and Republic acknowledges that the imprоvements were not completed by November 1, 1972 and that the lots were not made available to Red Lion until February 1975. Although after November 1972 Red Lion periodically expressed continued interest in the lots, it refused to purchase them in 1975. Republic then sought a declaratory judgment that Red Lion had not acquired any rights in the real estate by virtue of the 1972 contract. Red Lion counterclaimed, alleging that Republic had breached its contract by not completing the improvements until 1975.
The claims were heard separately. Republic received the declaratory judgment it had requested, but a second trial judge, subsequently hearing Red Lion’s counterclaim in a bench trial, held that Republic had breached the contract to prepare the lots and convey them. The court concluded that (1) the agreement was enforceable *486 against Republic, (2) time was of the essence in performing the contract, (3) Republic had not made reasonable efforts to complete the improvements on time, (4) Red Lion’s continued interest in purchasing the lots did not constitute a waiver of its right to demand performance in accordance with the contract terms, and (5) Red Lion was entitled to damages based on the profit it would have received from building and selling houses on the lots. These conclusions are all contested in the appeal.
I
We agree with the trial court that under Colorado law the agreement between Republic and Red Lion was an enforceable contract of sale. The mutual promises of the parties provided sufficient consideration, see
DeFeyter v. Riley,
II
The trial court held that thе circumstances surrounding the agreement necessarily implied that the parties intended time to be of the essence of the contract, although the agreement contained no express provision to this effect.
Time is of the essence when “the nature of the property or the exigencies of the transaction make timely performance essential.”
MaceRich Real Estate Co.
v.
Holland Properties Co.,
Colorado law did not require Red Lion to tender money or otherwise offer to perform on November 1, 1972. Rather, in order to establish Republic’s breach, Red Lion had only to be able to perform,
see DeFeyter v. Riley,
Ill
The trial court held that Republic failed to make reasonable efforts to develop the property and secure the approvals by the contract date. Republic, which is not a developer but an insurance company, hired the engineering firm Hogan & Olhausen to make the improvements and secure the approvals. Hogan & Olhausen was already in charge of developing adjacent subdivision lands for Republic. The trial court specifically found that Hogan & Olhausen worked “for and on behalf of Republic in all dеvelopment matters for which Republic was responsible,” R. II, 230, and that “Republic retained a right of final approval or disapproval over Hogan and Olhausen’s decisions, and Hogan and Olhausen understood and consented to that right of control.”
Id.
Testimony in the record supports these findings. From these factual findings the court reasonably concluded that Hogan & Olhausen acted as Republic's agent for developing the lots and obtaining the aрprovals.
See Ocrant v. Dean Witter & Co.,
In finding that Republic and its agent failed to make reasonable efforts to complete the development and secure the approvals by the contract date, the court cited several examples of what it considerеd unreasonable delay, including failure to begin preliminary earthwork until July 25, 1972, and failure to perform competently and quickly a necessary noise abatement study. These and other examples contained in the record support the court’s finding that Republic and its engineers did not make the effort necessary to meet the short deadline set in the agreement. Republic’s failure to make reasonable efforts to complete the improvements and secure the approvals on time gives rise to a cause of action for breach of its obligation under the contract.
See Sala v. Hay,
IV
Republic argues that even if it did breach the contract, Red Lion either waived its right to assert the breach or should be estopped from asserting the breach by having continued to express interest in purchasing the property after November 1, 1972. The trial court rejected both of these contentions, and wе affirm.
“[W]aiver is the intentional relinquishment of a known right .... ”
Ewing v. Colorado Farm Mutual Casualty Co.,
Republic also claims that Red Lion should be estopped from asserting the breach because in 1973 it asked Republic to make a change in some of the curb improvements, which Republic made at some additional expense. Republic also argues that Red Lion’s continued expressions of interest in purchasing the property estop it from asserting the breach. Estoppel will lie against a party “who by his language or conduct leads another to do what he would not otherwise have done [and] ... sub
*488
ject[s] such person to loss or injury by disappointing the expectations on which he acted.”
Mabray v. Williams,
Here the trial court found “[t]here is no evidence that Republic was induced to continue its development of the lots, or otherwise alter its position, in reliance on continued recognition of the contract by Red Lion.” R. II, 231. Conflicting inferences can be drawn from Red Lion’s cоntinued expressions of interest in the property and from Republic’s willingness to make a minor change requested by Red Lion. One inference is that Red Lion recognized the continued existence of the contract, the other that Red Lion remained interested as a potential purchaser of the lots when they were ready. Republic’s compliance with the change in the curb improvements could imply that Republic thought there was a continuing сontract; it could also imply that Republic made the change as an inducement to sustain Red Lion’s interest. The trial court obviously thought that Red Lion did not consider the contract to be still in effect and thought that Republic was not altering its position in reliance upon continued recognition of the contract by Red Lion. The record contains sufficient evidence to support the court’s ruling; we cannot say it is clearly erroneous.
See Higgins v. Oklahoma ex rel. Oklahoma Employment Security Commission,
V
The most difficult issues in this appeal are whether the trial court was correct when it used lost profits as the measure of Red Lion’s damages and, if that measure was proper, whether Red Lion’s proof was sufficient to sustain the $270,480 awarded. Damage awards in contract cases attempt to place the parties in the same financial position they would have occupied had the cоntract terms been fulfilled.
See, e.g., A to Z Rental, Inc. v. Wilson,
The trial court’s damage award here, using the lost profits measure, was based on its conclusion that the special circumstances of the agreement justified the award of special damages for its breach. The trial court noted that Colorado follows the general rule of damages that derives from
Hadley v. Baxendale,
9 Exch. 345, 156 Eng.Rep. 145 (1854).
See Western Union Telegraph Co. v. Trinidad Bean & Elevator Co.,
The trial court correctly concluded that Republic knew the use to which Red Lion planned to put the property. Republic agreed to improve the lots and secure the approvals specifically so that Red Lion could construct tract houses. Furthermore, the record indicates Republic’s knowledge *489 that Red Lion was a tract builder and only bought and built on lots that were completely improved, annexed, and approved by the appropriate federal agencies. Thus, Republic knew that the 92 lots in question, which were adjacent to other subdivision property, presented an opportunity uniquely desirable to Red Lion. Republic can be presumed to have known at the time the contract was entered into that if it failed to convey the land in the condition agreed upon it would deprive Red Lion of the opportunity to build the houses, and hence of the profit Red Lion wоuld earn by so building.
Colorado courts have applied the lost profits measure of damages in cases in which the surrounding circumstances indicate such an award is appropriate.
“ ‘[I]t is equally well settled that the profits which would have been realized had the contract been performed, and which have been prevented by its breach, are included in the damages to be recovered in every case where such profits are not оpen to the objection of uncertainty or of remoteness, or where from the express or implied terms of the contract itself, or the special circumstances under which it was made, it may be reasonably presumed that they were within the intent and mutual understanding of both parties at the time it was entered into.’ ”
Boyle v. Bay,
No Colorado case directly addresses lost profits as a measure of damages for breach of a contract to convey lоts to a tract home developer. The trial court relied on
Gilmore v. Cohen,
The more difficult question is whether Red Lion offered sufficient proof to provide a basis for an award of lost profits. Lost profit awards in Colоrado are not permitted if either the amount of the profits that would have been earned or the fact that the plaintiff would have earned them is too speculative to determine.
Boyle v. Bay,
Testimony at trial established that Red Lion had adequate financing, equipment, *490 and pеrsonnel to complete the construction and resale of the homes, that Red Lion was an experienced tract home developer, that past experience and rudimentary market analysis indicated the homes would have sold easily, and that past experience indicated Red Lion would have earned a profit on the construction and sale of the homes. The trial court concluded that Red Lion reasonably could have been expected to earn a profit on each of the 92 houses it would have built. 2
Most of Red Lion’s evidence on lost profits came in the form of the testimony of its president and part-owner, Malcolm Guthrie, whom the court specifically found to be credible. No documentary evidence was produced. The trial court based its award primarily on Guthrie’s testimony concerning Red Lion’s ability to build the homes, the type of homes it would build, the marketability of the homes, and the potential profit Red Lion would earn upon selling the homes.
Although Colorado courts prefer documentary evidence whenever its use is practicable, 3 they have upheld loss of profit verdicts that were based on undocumented testimony.
“[T]he parties are in disagreement as to whether the proof offered with regard to [plaintiff’s] loss of profits was sufficient to comply with the rule of certainty required by Lee v. Durango Music, supra. [Plaintiff] testified as to the costs of his business and his gross sales. From this testimony, the jury could arrive at a net profit figure. Although there was some uncertainty in these figures, such uncertainty is not grounds for denying recovery of damages .... Nor do we think that [plaintiff’s] case should fail because he, alone, testified as to his loss. Under the circumstances before us, an injured party is competent to testify to his own loss.”
Power Equipment Co. v. Fulton,
“Plaintiff, as we have said, offered evidence of his loss of earnings and profits during the period that he was obliged to remain inactive in his business because of the injuries incurred. It is true that he did not produce books of account or otherwise establish by records the exact amount of his losses, but he did state the basis of the computation thеreof....
Plaintiff’s evidence as to his business losses resulting from his inability to attend thereto, although concededly an approximation thereof, was competent evidence to aid the jury in estimating a fair and just compensation for losses occasioned by the injury.”
Heckman v. Warren,
We do not think
Gilmore v. Cohen
is inconsistent with the holding in these cases. In that case the Arizona Supreme Court upheld the trial court’s refusal to award lost profits because the plaintiffs had failed adequately to prove the amount of profit that they would have earned building and selling houses. The evidence consisted entirely of the plaintiffs’ own testimony; no documentary proof was introduced. The Arizona court characterized testimоnial evidence in cases of future lost profits as inherently weak.
“The plaintiffs seemed uncertain that they had ever shown a profit from the operation or that future profits were likely to accrue. Mrs. Gilmore, for example, testified as follows:
‘A Well, the first three we didn’t make any on. The fourth we made some on.
‘Q How much did you make on the fourth one?
‘A Oh, gosh.
‘Q Do you have that?
‘A I don’t have that information with me.’
She later testified to the cost and selling price of all the houses, but made several conflicting statements and several which were аt odds with her husband’s testimony on the same subject.
“In short, we are hot convinced that the evidence concerning damages was calculated to inspire confidence in the trial judge, and his conclusion that the amount was not established with reasonable certainty is justified on the record.”
Id. In the instant case the testimony, while undocumented, was unchallenged, specific, and consistent. Guthrie’s testimony established sufficient profit history and profit potential to “inspire confidence in the trial judge.”
Here Red Lion’s evidence, though testimonial, was sufficiently detailed and credible to provide a basis from which the trier of fact could determine the amount of damage suffered by Red Lion. Furthermore, Republic failed to challenge this testimony or to introduce conflicting evidence on the profits measure, despite warnings from the trial court that it would apply this measure. Though less than ideal, the testimony was sufficiеnt to support the trial court’s ruling.
AFFIRMED.
Notes
. The first trial judge held that Red Lion had no rights or interest in the lots. Republic seeks to show from this holding that there never was a valid contract. Republic argues that a valid contract for the purchase of real estate gives rise to an equitable interest in the property in the purchaser, and that the first judge held Red Lion had no such interest. Therefore, Republic argues, a valid contract never existed. This argument is unconvincing. That Red Lion possessed no equitable interest in the property in 1978 does not mean the contract was invalid in 1972. Furthermore, the first trial judge specifically left open the possibility that Red Lion could pursue claims other than that of an interest in real estate at a later date.
. The trial court awarded 14% (the lowest profit figure in evidence) of $21,000 (the lowest home price in evidence) for each of the 92 houses in order to avoid speculating whеther a higher profit would have been earned or higher priced homes would have been built.
. In
Lee v. Durango Music,