118 Cal. 310 | Cal. | 1897
This action was brought to recover from the defendants the reasonable value of plaintiffs alleged services rendered as an architect in drawing and preparing certain plans and specifications for buildings proposed to be erected by the defendants. Judgment was rendered for plaintiff in the sum of seven hundred and fifty-one dollars and forty-five cents; and from the judgment and an order denying a new trial the defendants appeal.
The evidence as to the value having been entirely that of expert witnesses, who differed in their estimates of the value, the defendants asked one of the witnesses how long it would take to draw the plans and specifications; to this question the plaintiff objected upon general grounds, and also upon the ground that it was not the proper method of proving the value of plaintiff’s services; and the court sustained the objection, saying that architecture is a science, and that the value of an architect’s labor is not to be measured by the time consumed. Defendant excepted to this ruling, and the question thus presented is the most important one in the case, although the arguments of counsel upon the point are very meager. The ruling was erroneous. It is settled law that a jury, or a judge sitting as a jury, is not concluded by the testimony of experts or their estimates of value.
It is averred in the complaint that there was a special contract between the plaintiff and the defendants by which the plaintiff was to draw certain plans and specifications, and to superintend the construction of buildings to be erected according to said - plans, and was to receive for the whole of such services five per cent of the estimated cost of the building; that after certain plans and specifications had been prepared by the plaintiff the defendants refused to construct any of such buildings, and there-bjr prevented the plaintiff from carrying out the contract, and that the reasonable value of plaintiff’s services for what he did before stopped was a certain amount for which he brings suit. The evidence shows, and the court found, that there was no special contract; and, therefore, it is contended by defendants that there is a fatal variance between the complaint and the findings of fact. If when the complaint was drawn the pleader knew the real facts, he should not have alleged a special eon-
Appellants contend that the amount found by the court as to reasonable value of respondent’s services was too large because one per cent of the estimated value of all the buildings was fixed as the proper amount for the preliminary sketches and specifications for all of said buildings, while in fact it appears that there were no plans or specifications for one of said buildings, to wit, the pavilion; but it is not necessary to examine this point closely, because upon another trial that matter can be properly adjusted.
In their answer the appellants averred that respondent, having learned that they contemplated the erection of certain buildings, voluntarily offered his services as architect; that they told him that they would not build unless they could procure a license for the sale of liquor in the pavilion and music hall which they contemplated erecting; that -he might go on and draw the specifications, if he saw fit, with the understanding that he was not to receive any compensation therefor unless appellants procured the said license; that the work done by respondent, and for which this suit is brought, was done with that understanding, to wit, that he should not be paid unless the license was procured and the buildings erected; and that, not being able to procure the license, the erection of the buildings was abandoned. There was no finding as to this special defense of the defendants, andwethink with appellants that the failure to find on this point was erroneous. Respondent contends that there was such a finding; but the finding relied on was simply “that there was no agreement between the plaintiff and defendants as to the amount to be paid to the plaintiff,” etc. This was not a finding as to the special defense set up by the defendant, but relates merely to the amount. It was merely a finding that there was no special contract as to any particular sum that was to be paid under any circumstances, but does not dispose of the question raised by the answer, whether or not plaintiff was to be paid anything in the
The judgment and order denying the motion for a new trial are reversed.'