15 Ohio App. 400 | Ohio Ct. App. | 1921
'Plaintiff in error, Harley W. Owens, who was plaintiff below, brought an action against the village of Wilmington under an alleged contract for services rendered by him to the village, in the preparation of plans and specifications for the construction of a building to be erected by the village, and which was to be known as the “Walker Memorial Library Building.” . The compensation was to be five per cent., based on the cost of the building, three per cent, when the cost of the building was ascertained by bids and two per cent, as the building was being constructed and finished. The improvement was to be made in accordance with a provision in the will of Samuel Walker. The portion of Item Three containing the provision is as follows:
“It [the ‘Village] shall purchase in said Village of Wilmington a suitable site for a library and Beading Booms building and locate a building thereon at a cost as nearly as practicable of $25,000.00, suitably constructed for said purpose and also business rooms and office which shall.be rented and rents applied to keeping said building in repair and paying for care of same, and any sum which remains over and above the cost of the site purchased, and the building erected thereon arising from the proceeds of-the sale of my real estate or any surplus of my personal prop-’ erty shall be applied to the purchase of books, maps, papers, manuscripts or such purpose as may best promote the interests and utility of said Library and Beading Booms.”
Plans and specifications were prepared, and the village, by the contract, agreed to accept and receive bids, and did advertise for bids. Upon opening the bids, it was found that the cost of the improvement was greatly in excess of the amount provided for in the will.
Plaintiff claims that the plans could have been changed to bring the improvement within the limitation, and offers testimony that he proffered to make such changes. The council of the village, however, refused to proceed, and .employed (another* architect to prepare the plans for the building, which was finally erected.
It could not be accurately known until bids were received juist what the cost of the improvement as planned would be. As council refused to deal further with the plaintiff, after he had prepared the
One of the defenses set up in the answer was that the plans and specifications did not substantially comply with the provisions of Item 3 of the will. It is true that when bids were received it was found that the building as planned would be more expensive than contemplated, but that was an error which could have been corrected, had plaintiff been given an opportunity so to do. However, that does not invalidate this contract made with the village. It would only affect the amount which plaintiff could recover for his services under the contract.
The answer also sets up the defense that the plans and specifications had not been approved by the inspector of workshops and factories, and that therefore no valid contract was made for the construction of the building. Undoubtedly the approval of the department of workshops and factories would be required before the actual erection work proceeded, however, this was not a necessary requirement up to the time of the breach by the village, after the village had by contract agreed to accept and receive the plans so submitted by the plaintiff.
In view of our holding that the provisions of the will are to be read into this contract, and that 'the fund therein stipulated was that from which the cost of the improvement was to be paid, the contract is not invalidated by the terms of the Bums law, Section 3806, General Code of Ohio. The cost of the building was to be paid out of this specific fund, held' for a specified purpose, and no part of the cost was to be paid from any fund raised by general taxes, so that no certificate was necessary showing that the money required to carry out the contract was in the treasury to the credit of this particular fund, not appropriated for any other purpose. Kerr v. Bellefontaine, 59 Ohio St., 446; and Comstock v. Nelsonville, 61 Ohio St., 288.
For the reasons above stated it will be necessary for this case to be sent back for trial to determine the damage sustained by plaintiff because of the breach.
The judgment of the court of common pleas will be reversed, and a new trial granted.
Judgment reversed.