115 Cal. 613 | Cal. | 1897
Plaintiffs are copartners in the practice of their profession as architects. They sued in this action to recover the alleged reasonable value of services performed, it is claimed, at defendant’s request, in the preparation of drawings, plans, and specifications for a building defendant had in mind to erect. After verdict and judgment in plaintiff’s favor, the court granted a new trial on the sole ground specified in its order, that it erred at the trial “ in permitting the introduction of evidence of a rule of compensation of architects, established by architects’ institutes or associations.” The plaintiffs appeal from the order granting a new trial, and contend that, if any evidence of a rule of compensation established by architects’ institutes or associations was admitted, it was not introduced or offered by
On cross-examination of plaintiffs’ witnesses, and on the direct examination of his own witnesses, defendant brought out the fact that the customary rates of charges made by architects originated in, and conforms to, a rule established by an association of architects. But the fact that the customary rate of charges originated in a rule which, as such, was not binding upon the defendant, did not render evidence of the actual custom incompetent. If the usual and regular wages of a mechanic are three dollars per day, does such customary rate become any less competent evidence of the value of his services when it is shown to have been first prescribed by a rule of his union? Certainly not. The rule, it is true, is not binding, as a rule, upon those who have not made it a part of their contract, and no one is held to have made it a part of his contract unless charged with knowledge of it. But, however ignorant an employer may be of the customary rate of compensation, such customary rate is evidence of value in any suit by his employee upon a quantum meruit.
The superior court did not err, therefore, in admitting the evidence offered by the plaintiffs, or in refusing to strike it out after the defendants had proved the rule of architects. And certainly the defendant was not entitled to a new trial because of the testimony offered by him.
The instruction of the court to the jury, with reference to this testimony, may have been misleading, but it was not excepted to at the time, nor was it specified as a ground of the motion for a new trial, and can lend no support to the order.
Other grounds were specified in support of the motion,
Van Fleet, J., Temple, J., Harrison, J., and Henshaw, J., concurred.
McFarland, J., dissented.
Rehearing denied.
