No. 70-344. (Supreme Court No. 23487.)

476 P.2d 584 (1970)

GIL'S HEATING SERVICE, INC., a Colorado corporation, Plaintiff in Error, v. William Daniel TAYLOR and Martha J. Taylor, Defendants in Error.

Colorado Court of Appeals, Div. II.

Attorney(s) appearing for the Case

Dawson, Nagel, Sherman & Howard, Don H. Sherwood, Denver, Marcus Werther, Edgewater, for plaintiff in error.

Loye & Bangert, Richard W. Bangert, Wheatridge, for defendants in error.

Not Selected for Official Publication.

ENOCH, Judge.

This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.

This is an action for damages initiated by William and Martha Taylor (plaintiffs) against Gil's Heating Service, Inc. (defendant) for breach of warranty. Trial was to the court which awarded judgment to the plaintiffs. The defendant concedes that it is bound by the trial court's findings and conclusions that defendant was liable to the plaintiffs for a breach of an implied warranty, but brings this writ of error on the sole issue that the trial court erred in calculating the damages. We agree.

In April, 1965, pursuant to a contract entered into by the parties, the defendant corporation replaced an old defective belt driven blower-type furnace in the home of the plaintiffs with a new furnace, equipped with a direct drive blower. In the fall of 1965, it was determined that the new furnace did not heat the house evenly. The plaintiffs' house had a conventional heat duct system, which has a high resistance to air flow and was designed for a furnace with a belt driven blower. The furnace installed by the defendant was a new furnace, however, it was equipped with a direct drive blower which was incapable of developing sufficient static pressure to force the heated air through this type of a duct system with even distribution. There was nothing wrong with the furnace unit itself, but it was the wrong type to properly heat the plaintiffs' house. The plaintiffs continued to use the furnace and brought this action for damages.

The trial court made no findings relative to damages, but did enter judgment for plaintiffs in the amount of $514.16, which is the amount of the contract price paid by the plaintiffs.

The correct measure of the buyers' damages for breach of contract by the seller in this case is that amount which would place the buyers in the position that they would have enjoyed had the contract been properly performed by the seller. See, Taylor v. Colorado State Bank, 165 Colo. 576, 440 P.2d 772; Fleming v. Scott, 141 Colo. 449, 348 P.2d 701; Peppers v. Metzler, 71 Colo. 234, 205 P. 945.

Plaintiffs argue the value of the furnace after installation was nil, thus, the full contract price was the proper measure of damages. However, the evidence indicates that the new furnace had some value. It was still heating the plaintiffs' house at the time of trial, though admittedly, it was not doing the job bargained for. In this case, the plaintiffs were entitled to recover that amount which would place them in the position they would have enjoyed had the contract been properly performed, less the salvage or trade-in value, if any, of the unit installed by the defendant. See, Hendrie v. Board of County Commissioners, 153 Colo. 432, 387 P.2d 266.

Accordingly, the judgment as to liability is affirmed and the judgment as to the amount of the damages awarded is reversed and remanded to the trial court for a new trial on the issue of damages only, consistent with this opinion.

DWYER and PIERCE, JJ., concur.


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