130 N.Y.S. 625 | N.Y. App. Div. | 1911
Lead Opinion
The defendant was the owner of the premises .known as Nos. 130-132 Worth street in the city of New York and desired to make alterations therein. For that purpose he had received certain-specifications from P. Boberts & Co., builders, with an estimate for the work thereunder. " Thereafter he had negotiations with plaintiff, an architect with an experience of upwards of twenty years, as the result of ■ which negotiations defendant wrote plaintiff as follows:
“New York, July 11th, 1901.
“ W. Darwin Hunter, Esq.,
“ 60 Wall Street,
“New York City:
“Dear Sir.— Following our conversation of yesterday I put in .writing what I told, you.,
“ I desire to have a copy of the specifications as you will suggest for the alterations on the building at 130-132 Worth St. sent to-several contractors. >
“ I will select the bottom figure,, and any amount which you can save on the bottom figure will be shared between us in equal, part. I agree to- pay the bills as soon as they are presented, if necessary, or you can get the best' terms,-not being necessary for me to pay cash if there is no profit.
.“ Yours very truly,
“JOJIN VIC ABIC.”
To this plaintiff sent the following reply:
“New York, July 19, 1901.
“John Vicario, Esq.,
“ 90 Centre Street, City:
“Dear Sir.— In reply to your favor of July 11th, I beg leave to say that I will undertake the matter of drawing up plans and specifications for. the alteration of your building at*95 130-132 Worth Street and obtain, estimates thereon, as you suggest, from good reliable builders, with the understanding that I am to have as my compensation one-half of the money saved you on the lowest estimate which I obtain.
“I will have plans,- specifications and estimates ready to submit to you on or about September 4th.
“Tours very truly,. ■
“W. D. HUNTER.”
These two letters are claimed to constitute the contract between the parties. Thereafter the plaintiff - proceeded to make sketches and measurements of the building, and to prepare plans and specifications for the work of altering the same which differed, in certain material particulars, from those previously prepared and the cost of performing which exceeded the prior estimate. These plans and specifications were furnished to defendant, who retained them, and though suggesting certain changes which added to the expense, never rejected them or suggested that they were unsatisfactory to him. The plaintiff then proceeded to obtain estimates from various contractors, as he was called upon to do under his contract, and succeeded in getting certain bids for the entire work called for in the plans and specifications, the lowest whereof was that of Isaac A. Hopper & Son, in the sum of $26,480. Defendant desired to have Roberts & Oo. bid on the work, as he deemed them reliable and did not want any one else to get the contract unless the work was done more cheaply, but he notified the plaintiff on November 12, 1901, that they would not bid on the work. In the meantime plaintiff had interviewed some fifteen or twenty sub-contractors, from-whom he obtained estimates on the performance of parts of the work appropriate to their respective trades, thus furnishing a basis for the ultimate saving of expense between the cost of the actual doing of the work by contract for parts thereof, and the lowest estimated cost of the doing of the entire work by one contractor. Defendant, however, abandoned the enterprise at that time, never proceeded with the work under plaintiff’s plans-and specifications, and -never paid plaintiff anything for his services. He did make certain alterations in the building in February, 1909.
At the close of the plaintiff’s case the first cause of action was dismissed, and properly, because there was’ no proof offered of what the work would actually have cost if done by contractors, each of whom did’ but a part thereof, and, therefore, the essential element was lacking for a comparison with the lowest estimated' cost, and' the saving which might have been effected could not be estimated.
The second cause of action was then likewise dismissed, on the ground that plaintiff had not proved his damages and they were not capable of proof in such an action. It is also sought to sustain this dismissal now on the ground that the services to be rendered were not those of an architect, but of a builder, and that as there was a contract fixing the value of the services to be rendered by plaintiff, he could not recover on quantum meruit. We do not believe the dismissal of the second cause of action can be sustained on any of these grounds. Examining the reason assigned by the learned trial court for its action, we find that plaintiff ■ had established the rendition of professional services as an architect in the drawing of plans and specifications for certain alterations in defendant’s building, at his request, and that the customary and usual charge for drawing plans and specifications is six per cent of the proposed cost of the alterations, in this case $26,480. So that damages amounting to $1,588.80 had been actually established upon plaintiff’s case. Nór are the other grounds assigned tenable. The contract in question is not in any sense a building contract. It is clearly one for the rendition of the professional services of an architect. Nor would the fact that he was required to render services in supervising the work to be done thereunder change the nature of the employment,, for such services are within the ordinary and natural work of an archi
The judgment appealed from should, therefore, be reversed and a new trial ordered, with costs to appellant to abide the event.
McLaughlin and Miller, JJ., concurred; Ingraham, P. J., and Laughlin, J., dissented.
Dissenting Opinion
(dissenting):
I think this judgment should be affirmed. The plaintiff undertook to prepare these plans and specifications and, was to receive as compensation one-half of the difference between the lowest figure for which a responsible builder 'would undertake to do the "work and the amount for which the plaintiff could do it. The two letters which are assumed to state the contract are not exactly alike, but as the plaintiff proceeded under his letter to the defendant, dated July 19, 1907, that letter maybe taken as constituting the agreement. The plaintiff drew plans and specifications and obtained a bid to do the whole work from Hopper & Son for the sum of $26,480. The plaintiff then
The judgment should be affirmed.
Laughlin, J., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.- ' ■