2 Wash. 653 | Wash. | 1891
The opinion of the court was delivered by
— This action was brought by respondent in tbe court below upon a quantum meruit for services alleged to have been rendered for and at the request of appellant, as architect in drawing plans and making estimates for the erection of a building to be known as tbe “Noyes Block” in the city of Seattle. A general denial was filed by tbe defendant, and upon the issues thus joined a trial was had by a jury, who returned a verdict for plaintiff for the amount claimed in tbe complaint.
It appears from the record that tbe plaintiff testified substantially, at the trial, tbat tbe defendant, at a certain time and place, told him tbat two architects (as be recollected or thought) bad proposed to make drawings or
The first contention of appellant is that the evidence fails to show any employment of respondent by him, or that he ever requested the latter to perform the labor .for which he now seeks compensation, and that the court below erred in not setting aside the verdict for insufficiency of the evidence. Upon that point both parties testified fully; and, there being a direct conflict between the testimony of plaintiff and defendant, it was for the jury to determine, under all the facts and circumstances before them, upon which side lay the preponderance of the evidence; and, not being convinced that the verdict was unwarranted by the evidence, we cannot say that the court erred in refusing to set it aside and grant a new trial upon the ground above indicated.
Counsel for appellant further contend that the court erred in charging the jury as to the measure of damages recoverable by plaintiff. The following is the instruction complained ofs
“ If you find from the evidence that there was a contract of employment to do the work as claimed by' plaintiff, your next inquiry should be, did the plaintiff do the work as requested? If he has, he is entitled to recover what the evidence shows such work to be reasonably worth. Was there a contract to do this work that the plaintiff claims? If there was not, he is not entitled to recover. If there was a contract, and he has performed the work according to that contract, he is entitled to recover what the evidence shows the services were worth.”
The point made is that, as the plaintiff claimed to have done the work under a contract whereby he was to receive three and one-half per cent, upon the estimated cost of the building as compensation for his entire services, the jury should have been instructed that he could only recover what the services rendered were worth, at the contract
The rule is well stated by Sutliff, J., in Doolittle McCullough, 12 Ohio St., at pages 366 and 367, as follows;
“But when the special contract is proved, whether by the plaintiff or defendant, under which the services were rendered, the special, and not the implied contract must determine the rights and liabilities of the parties arising in regard to the services. The price having been determined and mutually agreed upon by them, neither of the parties can vary the price so fixed by the contract. Nor, as to the price of the services actually rendered under-the contract while in force between the parties, can it avail the plaintiff, bringing his action to recover therefor, that since the rendering the services the defendant has put an end to the special contract. The fact would still remain that the services were rendered under a special contract, and at the price agreed upon, and expressed by the parties, and if the action upon the contract so made by the parties, and terminated by the defendants against the will of the plaintiff, be brought to recover damages generally, the same rule would apply as to the services actually rendered. The party having rendered the services would be entitled to recover at the rate agreed upon and stipulated in the contract between the parties, although of much less value than the price expressed in the contract; and in like manner the plaintiff would be restricted to the amount stipulated in the contract as the agreed price, although actually of much greater value.”
And on page 369 it is further said that “it may be laid down as a rule in all such cases, that the express contract so existing between the parties necessarily furnishes the measure of damages to the extent of the evidence thereby afforded, and to the same extent as in actions brought to recover damages in like cases where the contract continues in force, and has not been terminated, but only neglected and unperformed on the part of the defendant.” See, also, Koon v. Greenman, 7 Wend. 121; Bagley v. Bates,
isSo, also, if the contract is rescinded, one party stopping the work while the other is ready to proceed. In this case he is at liberty to prove the value of his services, but the contract is, nevertheless, not to be altogether disregarded." 0
It was not shown in this ease that it was impracticable to apportion the value of plaintiff’s services according to the rate of compensation claimed to have been stipulated for, and we are therefore of the opinion that the court below should have instructed the jury that, if they found that the plaintiff performed the services claimed to have been rendered by him under a contract specifying the price to be paid for doing the whole work agreed to be done by him, the measure of his recovery would be such a proportion of the contract price as the work done bore to the whole work embraced by the terms of the agreement, and that the failure to so instruct was error.
Counsel for appellant also insist.that the court erred in permitting the respondent to show the customary price charged by architects for such services as those rendered by appellant. But from what we have already said it is scarcely necessary to discuss that question. It is sufficient to remark that where no rate of compensation has been
It is further contended that the court below erred in charging the jury that before the plaintiff could recover he must establish the truth of all the material allegations of the complaint by a preponderance of the testimony. It is claimed that the court should have used the word “evidence” instead of “testimony,” and that a failure to do so was error. While there is, perhaps, a technical legal distinction between the two words, we have no doubt the same meaning was conveyed to the minds of the jury by the word “testimony” that would have been conveyed by the word “evidence,” and that appellant was in no wise injured by the charge of the court as given. Indeed, the words, according to Bouvier, are synonymous in meaning, though “evidence” includes “testimony,” as well as all other kinds of proof. Bouv. Law Diet.*, tit. “Testimony.”
The judgment of the court below is reversed, and the cause remanded for a new trial in accordance with this opinion.