42 Haw. 581 | Haw. | 1958
OPINION OP THE COURT BY
The plaintiff-appellee, an architect licensed in the Territory of Hawaii, brought an action for $1,200 as the reasonable value of architectural services furnished the defendant at defendant’s request. Defendant filed a counterclaim asking for damages, alleging unreasonable delay
It appears that defendant was desirous of erecting a hotel upon his premises at Waikiki and under an oral contract engaged the plaintiff as an architect to prepare plans. He wished to complete the hotel at an early date, stating he wanted it completed by July. He was told it would take six months’ work after the plans were completed, which would require the plans to be completed on January 1st; that it would be impossible as plaintiff could not turn loose all his office force on this project until the middle of January when he would be through the high-priority work for the City and County upon which he was then engaged. Preliminary plans were prepared for the purpose of aiding defendant to obtain financing. Apparently defendant being unable to effect
Defendant’s contention that time is of the essence does not appear from the evidence or from the findings of the judge.
At law, as well as in equity, the question of whether time is of the essence is to be determined by the intent of the parties. Ordinarily time is not of the essence unless made so by express stipulation or unless there is something connected with the purpose and surrounding circumstances of the contract which make it apparent that the parties intended that the contract must be performed at or within a time named. (12 Am. Jur., Contracts, § 306, p. 861.)
The testimony shows preliminary work on the plans was being done and defendant made frequent visits to plaintiff’s office in connection therewith. It appears from the testimony and from the findings of the judge that no express promise was made as to the time of completion, and from the conduct of the parties there was no implied promise to that effect. In spite of the information given defendant that it was impossible to complete the drawings by the end of December, the defendant continued plaintiff on the job until December 28 when he dismissed him. There is ample evidence to sustain the finding of the trial judge upon this point.
Counsel for appellant devotes most of his brief to the proposition (citing numerous authorities dealing with the rule, but under other circumstances) that the reopening of the case and the introduction of additional evidence was “improper” as no written motion was filed as required by Buie 7 (b) (1) of the Hawaii Buies of Civil Procedure.
The purpose of a motion in writing is to give notice to the opposite party and state the grounds of the motion. There is nothing sacrosanct about the writing. The defendant was notified orally to appear upon the motion, he did appear, and argument was had. The defendant did not object to the lack of notice or lack of writing but, as stated supra, upon the ground that the case was concluded and objection was made to the reopening at that time, namely, after the case was concluded.
Had defendant at that time objected to the lack of written notice, the court possibly would have postponed the hearing if the defendant was not prepared to go ahead with the hearing upon the motion. As this was not done, written notice was waived, as every purpose that would be served by a written motion, that is, the time of hearing and the grounds, was made known to defendant.
It is elementary that the reopening for the taking of additional evidence was within the discretion of the court. (6 Moore, Federal Practice, 2d ed., p. 3725.) There was no error committed by the trial court in reopening the case and receiving additional evidence.
Another point made by the defendant is that he engaged plaintiff to do complete working drawings for a single consideration and that he was entitled to nothing less, citing authorities to the effect that the general rule is that a “defaulter” who partially performs an entire and indivisible contract is not entitled to any remuneration from the other party for any work done by such indivisible
Relative to architects and their contracts to complete plans, it is stated “If the contract of employment is breached by the employer by wrongful discharge of the architect, the latter’s rights are analogous to the rights of any other person whose employment contract is wrongfully terminated. If such wrongful termination is made before the plans are completed, the architect is entitled to recover for work done upon them.” (3 Am. Jur., Architects, § 12, p. 1006.)
In Stephen v. Camden & Philadelphia Soap Co., 68 Atl. 69 (N. J.), the court stated:
“Where the plaintiff, an architect, had prepared plans for the erection of a building under a written contract with defendant, providing compensation on a fixed percentage of its cost, the plaintiff also contracting to. supervise the. work to be done upon the building for such percentage, and subsequently the defendant, without right, abandoned the undertaking so that supervision became impossible, held, that the plaintiff might recover of defendant the reasonable value of his services performed before such abandonment.”
The court stated as follows in Holman v. Updike, 94 N. E. 689 (cited by Corbin, footnote, page 475):
“Where a party, contracting for the preparation by the adverse party for a lump sum of a set of drawings, ordered the adverse party to cease work before the completion thereof, the adverse party could elect to rescind, and sue for the value of the labor done and materials furnished.”
Affirmed.