John v. United Advertising, Inc.

439 P.2d 53 (1968)

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Nature of the Case

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Facts

John (P) entered into a contract with United (D). D agreed to construct, install and then maintain at its own expense for three years seven outdoor display signs advertising P’s motels in return for which P promised to pay D the sum of $95 per month for three years. The aggregate rent was broken down to $35 for a larger sign and $10 per month each for six smaller signs. The contract has a provision in it that termination or modification of any item of the agreement constituted that part of the agreement only and did not affect any other item or part of the agreement. P sued D and alleged in his complaint that D failed to erect and maintain the signs as it agreed and that P suffered damages of $10,655. Of this amount, $10,000 represented lost business and $655 represented monies paid to D under the contract. D alleged that seven signs had been erected and maintained except for one small sign, which was referred to as number 4. D asserted no counterclaim as it had assigned its claim against P to a collection agency. The trial court found that five of the signs were erected properly and that sign 4 was never erected and that sign 5 though erected was not in the location provided for in the contract. The trial court found that D had breached the contract with respect to two of the signs. The court then ruled that the contract was divisible and that the breach was severable. The court then ruled that P had failed to establish that he was damaged and dismissed P’s claim. P appealed.