Opinion
June 8, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
Whether tenant had right to remove trade fixtures and whether he could do so without causing material damage to the leased premises, which were allegedly specially constructed for tenant's meat packing operations, were factual determinations, and trial court's conclusions with respect thereto would not be disturbed where they were supported by the record.
Page 37
Pferdesteller, Vondy, Horton & Worth, Denver, for plaintiffs in error.
John D. Comer, Denver, for defendants in error.
DUFFORD, Judge.
This case was transferred from the Supreme Court pursuant to statute.
The parties appear here in the same order as in the trial court and will be referred to as the plaintiff and the defendant. This action involves a lease agreement between the plaintiff as lessor and the defendant as lessee. In his complaint, the plaintiff asserted four claims for relief, which we shall refer to as (1) rent claim, (2) the improvements claim, (3) the damage claim, and (4) the fixture claim. Following a trial to the court, judgment was entered in favor of the plaintiff on the damage claim in the amount of $300, and the remaining three claims were dismissed. From such judgment the plaintiff appeals, and the defendant asserts cross error. No question is raised on appeal concerning the trial court's dismissal of the rent claim. We will discuss the assignments of error relating to the other three claims in the order listed above.
I.
THE IMPROVEMENTS CLAIM
The plaintiff first contends that the trial court erred in not charging the defendant with the cost of certain improvements which plaintiff made to the leased premises during the defendant's tenancy.
The improvements in question consisted primarily of paving the outside of the leased premises and were required by the Federal and local health authorities to prevent dirt and dust from entering the defendant's meat packing operations. The plaintiff testified that the defendant had agreed to pay for the cost of the paving if the plaintiff would do the work. The defendant denied the existence of any such agreement. The trial court made no specific finding relative to the agreement, and ruled that, even if the defendant had agreed to pay for the cost of the improvements, the written lease agreement which required the plaintiff, as lessor, to pay for structural repairs to the leased premises was controlling, and that under its terms plaintiff had the burden of paying for the improvements in question.
It is our opinion that this ruling of the trial court was erroneous in that, even if the written lease agreement did, in effect, place the burden of paying for the cost of the improvements on the plaintiff as lessor, a written lease agreement may be subsequently modified by the oral agreement of the parties. Lamar Cold Storage Co. v. Union Ice & Storage Co., 77 Colo. 556, 238 P. 42.
II.
THE DAMAGE CLAIM
Plaintiff secondly contends that the trial court's assessment of only $300 damage to the leased premises in excess of ordinary wear and tear was against the manifest weight of the evidence. The defendant asserts that no damages whatsoever were shown, and that the $300 assessment was excessive and not supported by the evidence. We find that, although the evidence on this point was conflicting, the trial court's assessment of $300 damages is supported by the record, and it is therefore affirmed. Ruston v. Centennial Real Estate and Investment Co., 166 Colo. 377, 445 P.2d 64.
III.
THE FIXTURE CLAIM
Plaintiff lastly contends that the trial court erred in not finding that the leased premises were specially constructed for meat packing operations, and consequently erred in not assessing damages against the defendant for the cost of certain fixtures which the defendant had placed on the leased premises and then removed when the lease was terminated. Plaintiff argues that fixtures which are necessary to the operation of the meat packing plant became realty and the property of the lessor as a matter of law.
Whether the defendant had the right to remove any trade fixtures, such as the ones in question here, and whether he could do so without causing material damage to the leased premises were factual determinations, and the trial court's conclusions in this regard will not be disturbed since they are supported by the record. Andrews v. Williams, 115 Colo. 478, 173 P.2d 882; Ferganchick v. Johnson, 28 Colo.App. 448, 473 P.2d 990.
The judgment is affirmed with respect to all claims except the improvements claim.
The judgment is reversed in part, affirmed in part, and this cause is remanded with directions that the trial court make a specific finding as to whether the defendant had orally agreed to pay for the improvements in question and enter its judgment accordingly.
COYTE and ENOCH, JJ., concur.