Opinion
Aug, 15, 1972.
Editorial Note:
This case has been marked 'not for publication' by the court.
Calvert & Calvert, Robert A. Calvert, Aurora, for plaintiff-appellee.
Sol Cohen, Morton L. Davis, Denver, for defendant-appellant.
PIERCE, Judge.
Plaintiff sued for the refund of alleged overpayments made on certain contracts for the hire of equipment operated by defendant. Defendant denied receipt of any overage, and counterclaimed for sums allegedly due on completed projects contracted for between the parties. Defendant also claimed that plaintiff had breached an executory contract between them by not allowing defendant to perform.
The trial court denied defendant's counterclaims and awarded plaintiff judgment for part of the overage claimed. Defendant appeals. We affirm.
Among the errors alleged by defendant is the trial court's failure to award it $670 for plaintiff's breach of a written contract relating to a job to have been performed by defendant at the University of Denver. The contract involved provided, in pertinent part:
'Contractor shall notify subcontractor of day on which he will need crane service at least two (2) days prior to the day needed.'
The record is clear that there was a discussion between agents of the parties sometime on a Monday morning, at which time defendant was told that a crane would be needed on the job in question at 8:00 a.m. on the following Thursday. Although what transpired thereafter is disputed, there is evidence in the record that an agent of defendant telephoned plaintiff on Wednesday and told it that defendant would be unable to be on the job with its equipment in an operational condition until sometime Thursday afternoon. Plaintiff then informed defendant that it would have to hire someone else to do the job. Another crane company was hired, and the work commenced on Thursday morning as scheduled.
Defendant claimed that it was not given the requisite notice provided by the contract and that it should have been allowed until Thursday afternoon to set up for work on the job site. The trial court ruled that proper notice was given; the time for performance expired before the third party commenced work; and that plaintiff had not breached the contract in hiring the other firm to do the work.
It is undisputed that the notice was given sometime Monday morning. Defendant contends that, because the words 'at least' were used in the contract, Monday should not have been considered a full day and that the time should not have been determined to begin to run until the exact hour that the notice was given on Monday. Unless the parties to a contract manifest a contrary intention, Colorado does not recognize fractional parts of a day in computing time. Grizzly Bar, Inc. v. Hartman, 169 Colo. 178, 454 P.2d 788; Smith v. Board of County Commissioners, 10 Colo. 17, 13 P. 917. The day on which the notice is given, if included in the computation of time is counted as a full day and the words 'at least' in the contract have no effect on that computation. Luedke v. Todd, 109 Colo. 326, 124 P.2d 932.
The question then becomes whether, by counting Monday as a full day, defendant received adequate notice. The general rule applied to the computation of time under this type of contract provision is that the first day is excluded and the last day is included in computing the time within which the act may be performed. Ziganto v. Taylor, 198 Cal.App.2d 603, 18 Cal.Rptr. 229; Bush v. Johnson, 215 A.2d 850 (D.C.App.); Union Mutual Life Insurance Co. v. Kevie, 17 A.D.2d 109, 232 N.Y.S.2d 678.
Colorado has adopted this rule in interpreting statutory provisions, but has added the option that the first day may be included and the last day excluded. Luedke v. Todd, Supra; Pelton v. Muntzing, 24 Colo.App. 1, 131 P. 281; Stebbins v. Anthony, 5 Colo. 348. We hold that this is a proper rule for interpreting contract provisions where no contrary intention of the parties is determined by the trial court. See, Phillips v. Commercial Credit Co., 121 W.Va. 234, 3 S.E.2d 836. By application of either option, defendant received notice of sufficient length. Therefore, since defendant stated that it could not perform at eight o'clock on Thursday morning, and since proper notice was given, plaintiff did not violate the contract by arranging for a third party to complete the work at that time.
The other points of error alleged by defendant are all factual in basis. We have examined the record regarding each point raised, and, although there is conflict in the testimony, there is sufficient evidence to support the trial court's factual conclusions favoring plaintiff, and we will not disturb these determinations. Gleason v. Phillips, 172 Colo. 66, 470 P.2d 46.
Judgment affirmed.
COYTE and ENOCH, JJ., concur.