Opinion
Aug. 10, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 100
Meer & Wolf, Albert B. Wolf, Denver, for plaintiff in error.
Samuel L. Anderson, Fort Collins, John E. Lancelot, Denver, for defendant in error.
DUFFORD, Judge.
This case was transferred from the Supreme Court pursuant to statute.
The positions of the parties in this appeal are the same as in the trial court. We shall refer to the plaintiff as 'Rocky Mountain' and to the defendant as 'Seder.'
Rocky Mountain's action against Seder sought damages for breach of contract. The case was tried to a jury which returned a verdict in favor of the defendant Seder. Rocky Mountain has appealed from the judgment which was entered on the jury verdict.
In its appeal, Rocky Mountain asserts, in essence, four errors on the part of the trial court. They may be summarized as follows: First, it is asserted that there was insufficient evidence presented during the trial of this case to justify the trial court's instructing the jury concerning the duty of one to mitigate his damages where there has been a breach of contract; concerning estoppel to assert a contract breach; relative to waiver of a contract breach; and as to the legal effect of an agreement, express or implied, to abandon or rescind a contract. No assertion is made by Rocky Mountain that the instructions which were given by the trial court on these legal matters were erroneous. Second, Rocky Mountain contends the trial court erred in admitting testimony concerning a possible oral extension of the time in which Seder was to perform its contractual obligation. Third, Rocky Mountain objects to the fact that the trial court permitted Seder to amend its answer after Rocky Mountain had presented its case. Fourth, it is asserted that the trial court should have granted Rocky Mountain's motion for a directed verdict.
Based upon our review of the record, we affirm the trial court for the following reasons:
I.
We affirm the action of the trial court in instructing on the legal issues which Rocky Mountain denies were raised by the evidence in the trial of this case. In the event it had been determined in the trial of this case that there had been a breach of contract on the part of Seder, then under the law of this jurisdiction there would have been a legal obligation on the part of Rocky Mountain to mitigate its damages. Hoehne Ditch Co. v. John Flood Ditch Co., 76 Colo. 500, 233 P. 167. The record indicates testimony by one of Rocky Mountain's own witnesses from which the jury could have concluded that Rocky Mountain had failed to act reasonably in the mitigation of its damages.
We also find within the record adequate evidence to support the possible legal theories that Rocky Mountain was either estopped to assert a breach of contract on the part of Seder, or that it had waived its right to assert a breach of contract, or that it had expressly or impliedly participated in an abandonment of the contract or in a rescission of the same. As now stated in the 'General Directions for Use' contained in the Colorado Jury Instructions under General Direction 9, each party is entitled to instructions as to his theory or theories of the case, if supported by evidence. In the instant case, the legal theories upon which the jury was instructed, and which are objected to here by Rocky Mountain, were theories of defense ultimately set forth by Seder, and there was evidence within the record to support the advancement of each such theory. Under such circumstances, there was no error on the part of the trial court.
II.
We also hold that the trial court was without error in allowing the defendant Seder to amend its answer to set forth certain affirmative defenses following the presentation of the plaintiff's case. After allowing the amendment, the trial court also granted Rocky Mountain the right to a continuance, which right was then expressly waived.
Under the provisions of R.C.P.Colo. 15(b), which governed the trial of this case, the right to amend pleadings to conform to evidence is expressly allowed upon leave by the trial court. The granting or denial of permission to amend a pleading is a matter that lies within the sound discretion of the trial court. Fedderson v. Goode, 112 Colo. 38, 145 P.2d 981. The principal purpose of R.C.P.Colo. 15 is to assist in attaining the underlying purpose of the Rules of not making pleadings an end in themselves, but rather to mke them a means for the proper presentation of the case and to make them assist and not deter the disposition of litigation on the merits. 3 J. Moore, Federal Practice s 15.02(1) (2d ed. 1968). There was no abuse of discretion on the part of the trial court.
III.
The trial court was also correct in allowing testimony concerning the possible oral extension of the time in which Seder was obligated to perform under the contract in question. Although it was questionable in this case whether the alleged oral extension was given by a person authorized to do so, this became a factual question for resolution by the jury. Marron v. Helmecke, 100 Colo. 364, 67 P.2d 1034. If the jury concluded that such person did possess the authority to grant an oral extension, it should not, as is contended by Rocky Mountain, have been precluded from determining whether the extension was in fact granted on the theory that there was no evidence presented as to additional consideration received by Rocky Mountain for the granting of such an extension. Additional consideration is not required to support an extension of time for contract performance, if the parties mutually agree on the extension. Tallman v. Smith, 112 Colo. 217, 148 P.2d 581.
IV.
The trial court was also correct in denying Rocky Mountain's request for a directed verdict. As we have indicated above, there was substantial and conflicting evidence concerning the question of whether Seder did or did not breach the contract in question, and there was also substantial evidence bearing on the question as to whether Rocky Mountain could or could not legally assert the right to damages for a breach of the contract if such had occurred. These were all questions for the jury, as the trier of the fact, to determine. It would have been improper to remove them from jury determination. Nettrour v. J. C. Penney Co., 146 Colo. 150, 360 P.2d 964.
Judgment is affirmed.
COYTE and DWYER, JJ., concur.