Opinion
May 18, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
Plaintiff's original estimate sheets listing in detail items of labor and materials required for job performed on defendant's property and authenticated original ledger sheets itemizing all costs of labor and materials plaintiff actually expended on job were sufficient to establish reasonable value of labor and materials furnished to allow recovery by plaintiff, who could not show express contract, on theory of quantum meruit.
Boyle, Boyle & Imig, Herbert M. Boyle, Denver, for plaintiff in error.
Rush & Rush, Robert P. Rush, Salida, for defendant in error.
DWYER, Judge.
This case was transferred from the Supreme Court pursuant to statute.
Plaintiff Butala Construction Company brought this action against defendant Helen A. Mazzuca to recover the unpaid balance of an amount allegedly due it for labor and materials furnished in the repairing and remodeling of a bar in Salida, Colorado. At trial to the court, plaintiff recovered a judgment in the sum of $10,199, and defendant, appearing here as plaintiff in error, seeks reversal.
In January of 1965, the Main Bar in Salida, Colorado, was damaged by fire. At that time, the bar was owned and operated by a partnership consisting of the defendant, her husband and her brother. Prior to the commencement of this action, defendant's husband and her brother died. After the fire, Frank Butala, president of the plaintiff corporation, estimated the cost of repairing the building to be $16,347. This estimate was prepared at the request of an insurance adjuster and the defendant's husband, and the fire loss was settled on the basis of this estimate. Thereafter, Butala prepared a second estimate, itemizing the actual repairing and remodeling of the building, and computed the cost to be $16,425. Butala testified that he supplied the labor and materials listed on this estimate, and that, in addition, he performed extra work and installed extra materials for which he claimed an additional sum of $5,918. Plaintiff's records established that defendant had paid $12,144 on the account.
At the trial, plaintiff attempted to establish an express contract for the performance of the work. However, the evidence of such a contract consisted of conversations between Butala and the deceased partners, and all such evidence was excluded on objection by defendant because of the provisions of C.R.S.1963, 154--1--4, sometimes referred to as the 'Dead Man's Statute.' Defendant admitted that she had knowledge of the work that was done by the plaintiff corporation, but denied knowledge of any express contract.
At the close of the evidence offered by plaintiff, defendant moved the court to dismiss the action because of plaintiff's failure to establish a contract. The trial court agreed that no express contract had been proved, but ruled that plaintiff had established a right to relief on the basis of quantum meruit. On this appeal, defendant challenges the availability of the remedy of quantum meruit and also the sufficiency of the evidence to support the judgment on that basis.
In its complant the plaintiff alleged that at the request of the partnership it furnished labor and materials in the repair and remodeling of the bar, and that by reason thereof defendant was indebted to plaintiff in the sum of $10,199. In her answer defendant admitted the existence of the partnership, admitted that plaintiff supplied certain materials and labor in the remodeling of the bar, denied that the total indebtedness was in the amount alleged by plaintiff, and claimed as an affirmative defense that plaintiff had been paid in full.
The issue tendered by the pleadings was the indebtedness of defendant to plaintiff. Plaintiff was entitled to establish this indebtedness by proof of an express contract, or by proof of facts entitling it to recovery on an implied contract. Plaintiff's unsuccessful attempt to establish an express contract was not fatal to its right of recovery on the alternative theory of quantum meruit. Under our present Rules of Civil Procedure a complaint which identifies the transaction which forms the basis of plaintiff's claim will permit proof of facts establishing a right to relief. See Behlen Mfg. Co. v. First National Bank, 28 Colo.App. 300, 472 P.2d 703, which quotes with approval the following statement from Weick v. Rickenbaugh Cadillac Co., 134 Colo. 283, 303 P.2d 685:
'Under the Rules of Civil Procedure it no longer is necessary to elect at the peril of a pleader a particular theory or 'cause of action.' In most cases it is sufficient if the pleader identifies the transactions which form the basis of the claim for relief, and if upon any theory of law relief is warranted by the evidence offered and received in support of the claim, it should not be denied because of the wrong technical 'cause of action."
To establish a right to recover on the quantum meruit claim, it was incumbent upon plaintiff to establish the reasonable value of the labor and materials furnished. See Grau v. Mitchell, 156 Colo. 111, 397 P.2d 488; Bronstein v. Ryan, 78 Colo. 231, 241 P. 539. Plaintiff introduced into evidence the original estimate sheets which listed in detail the items of labor and materials required for the job. Plaintiff also introduced into evidence its original ledger sheets which itemized all of the costs of labor and materials that plaintiff actually expended on the job. The ledger account was properly authenticated by testimony of the bookkeeper, and plaintiff's president testified that all of the items in the ledger were actually incorporated into the job. In addition to the direct cost of labor and materials, the ledger sheets contained a charge for 'overhead' which plaintiff had allocated to this job. Plaintiff also claimed to be entitled to ten per cent of these costs as profit on the job. The defendant offered no evidence in opposition to plaintiff's evidence on the issue of the value of the work, but contended in the trial court, and urges here, that there is no evidence of the reasonable value of the work.
Value is a quality so intangible that various probative methods are of necessity recognized as available to establish 'reasonable value' when that issue must be judicially resolved. Our Supreme Court has held that in some cases proof of cost may furnish a sufficient basis upon which a determination of value can be made. Colorado Kenworth Corp. v. Whitworth, 144 Colo. 541, 357 P.2d 626. Portland Pulley Co. v. Breeze,
The plaintiff's uncontroverted evidence is sufficient to support the court's finding that the materials furnished and the work performed by the plaintiff had a reasonable value of $22,344.
Judgment affirmed.
COYTE and PIERCE, JJ., concur.