Perkins v. Hanks

188 Mass. 120 | Mass. | 1905

Braley, J.

The contract out of which this suit arises consists of two distinct parts. It first provides for an adjustment of an existing indebtedness due the plaintiff for services previously rendered as an architect, and then stipulates for similar services by him in the future. Accordingly the plaintiff agreed to prepare plans, the number and size of which were to be mutually agreed upon, that were to be used in the construction of houses to be built upon land of the defendant. These plans were to be ready for use as soon as they could be reasonably and properly finished, and after he had received directions from the defendant, and the issue of fact at the trial was whether the plaintiff had performed his part of the contract.

Whatever the reasons may have been which led to the insertion of the statement, “ The architect’s commission on which, at five per cent, is not to exceed the value of $350 ”, from which if nothing further appeared a promise to pay a percentage not exceeding that sum if the plans were made according to the agreement might be implied, there immediately follows a clause making an express provision for payment. It is there stated, “ It is further mutually understood and agreed that the equity of said before described land is given as security for a further payment of $250, which sum shall, when paid, be considered to be full payment for said above last named plans.”

This explicit agreement of parties must be held to control the price to be paid for the plaintiff’s work rather than the rate of compensation to be implied from the language found in the preceding paragraph. Morrill & Whiton Construction Co. v. Boston, 186 Mass. 217.

It must be construed to mean that the parties agreed that if the plaintiff furnished the plans specified he was to receive the amount fixed for them at the expiration of two years from the date of the contract, unless in the meantime he had sold the land held as security, and taken the proceeds, in which event the defendant would be released from all liability of further payment; or if the plaintiff had not sold it, upon exercising his option he could discharge his debt and receive a reconveyance.

It appears from the plaintiff’s evidence that at the request and under the direction of the defendant, he drew general plans for a house, and then from these prepared a set of sketch plans, all of which were delivered to the defendant who accepted and retained them, and that during the two years from the date of the contract whenever called upon by him he had been ready and willing to prepare building plans. The contention of the defendant was that his instructions to the plaintiff were limited to the preparation of plans for a house that could be built for not more than a certain sum above the foundation, and as the plaintiff never succeeded in drawing plans that met this requirement, he did not accept them, and because of a failure to comply with this request, or follow directions given to him, he did not ask or demand his further services. Upon this conflicting evidence' the jury have found in favor of the plaintiff, and the argument that the plaintiff by simply being ready and willing to offer performance during the life of the contract would have the right to receive at least the sum expressly stipulated for, without having done any work, becomes purely speculative. For the real question presented is not whether the plaintiff being disposed at all times to keep the agreement, and no request having been made by the defendant, would be allowed thereby without rendering any actual service to recover to this extent; but is rather, having performed it upon such a request, what amount is due to him.

Having done all that he agreed to do, and it appearing that he has not sold the land, and still .holds it, and that two years have expired within which the defendant could pay in money, and redeem, but has not done so, the plaintiff is entitled to hold his verdict.

Exceptions overruled.