*1 strenuously sin very It is
cerely between urged that the transaction nature such a
the Tellers and Martin is of injurious public good
as to be and, therefore, public
against the interest public policy. General state
contrary to support
ments of law are cited in refutation
contention. It is a sufficient be that the contract argument to state may be
tween the Tellers and Mr. Martin and for the use
enforced themselves long and benefit o'f S. Martin under J. recognized
line of decisions this court. Payne, 96 N.W.
Galbraith v. 12 N.D.
258; Loy, Benefit of Union Use Kessler, 738, 39 Securities Co. v. 76 N.D. therein cited.
N.W.2d and authorities contrary
The statute thus construed is pro public By approval policy. of this
cedure this court has so determined. (cid:127) of the trial court is re-
versed. '
"BURKE, GRIMSÓN, J., C. SATHRE, JJ.,
MORRIS and concur. RESSLER, Respondent,
Nick Plaintiff and
v. Savings
S.P. NIELSEN and First Federal and Loan Association of Appellants. Defendants and
No. 7525.
Supreme Court of North Dakota.
March
158 preparation
claimed to be earned for the supervision belonging building of a construction Bismarck, defendant North located at Dakota, known as the Admiral Hotel. complaint alleges that is April during the month of 1948 agreement he entered into oral with the defendant the terms of which speci- agreed to draw building fications a hotel known as the Admiral Hotel located on lot block plat Bismarck, original supervise the construction building, of said and that com- mission was to be of the cost 5% building. supervision After the work of and construction had continued for some parties time the entered into another oral agreement whereby agreed it was that thereafter the defendant would take over supervision of the construction of the build- ing and that from commis- there sion of the as architect should be reduced to of the remaining cost of 3% complaint alleges construction. The during that plaintiff super- the time that building vised the expended there was $16,250. thereon the total sum of It then that the remaining cost of $62,000, plaintiff was entitled to commission 3% upon complaint said sum. The then al- leges that the said amount has not been paid except the sum of and that there owing still due and $2,172. sum of Plaintiff then demands for said amount and that he be adjudged and de- to have a creed lien said complaint described which lien was junior to be and inferior to mortgage to the defendant First Federal Savings & Loan Association and Nielsen, it be Bismarck, decreed W. Thomas A. John premises said be sold Pearson, Bismarck, Elver sheriff of T. Zuger Burleigh County brief, according to law appellant. proceeds of said sale and Donahue, Higgins & for re- deducting expenses after costs spondent. paid plaintiff be the amount aforesaid and purchaser become a SATHRE, Judge. such sale. plaintiff brings The answer against generally allega- this action denies complaint. alleges in plaintiff’s defendant to recover commissions tions ordered, to bréale resulting damage to had certain material after in the sum plaintiff was apparent $546. it became construction qualified supervise *3 plaintiff’s That the electrician followed en- parties then building; that the of the plans specifications lights and placing in the or contract agreement an oral tered into in places, the building hall the in wrong of receive whereby plaintiff was to the requiring at a defendant to relocate them for draw- services commission for his 3% cost of $200. specifications; that plans ing suitable and $70,000, was cost of the total plaintiff That had made meas- incorrect services, plaintiff’s for fees and that the blocks, making granite urements of certain competently per- been if such services had necessary for make two defendant formed, $2,100; the that been would have trips Cloud, Minnesota, pur- to St. the for paid upon the claim defendant $500 pose recutting granite of. at said blocks plaintiff. of the a cost of $200. way of further and As a answer That in the the total of said items the that draw- counterclaim $3,597 sum of as claims defendant prepared by specifications and ings, a counterclaim. plaintiff carelessly, negligently and the were reply Plaintiff’s the prepared; that defendant’s coun- incompetently and drawn expressly any terclaim plaintiff’s or negligence denies relying the defendant in way competence part any lack of on his in damaged in the representation greatly was drawing the all building, of construction supervision in the de- incompetence building, of said and lack negligence, of the specifically nies that the suf- plaintiff pre- knowledge of and skill of damage specifica- fered loss or whatsoever due plans and paring drawing the fault, incompe- negligence building. for the The answer then tions tence carelessness. following damages the items of alleges a counterclaim: court case was tried the district pit the elevator were The dimensions of Dakota, Burleigh County, North of before necessary specified, became and that it Thom, Jr., judge, Hon. the Geo. district pit by an additional cost dig a hand at jury. a found district court of to defendant the sum $551. plaintiff for the and held that there were contracts; parties that first two oral specifications placed wa- That the certain paid plaintiff a agreed that was pipes ventilating system causing ter the build- cost of commission 5% replacement to freeze burst a them drawing for ing compensation $1,000. to defendant of cost con- supervising the pipes copper certain steam were That parties en- then thereof. struction under the cement floor base- laid agreement con- tered oral into second and that some said of the ment whereby agreed that the de- it was tract leaky, defendant has pipes supervise became con- fendant himself would pipes have advised said plaintiff struction and was to be pipes or new installed at cost abandoned commission on allowed the remainder 3% $1,200. building. the cost of The district plaintiff that while the court found was grates the window for basement That supervising the construction of the build- fit, cost of did windows expended ing there was thereon the sum same will be repairing $100. $9,707 which the was en- commission That lobby titled the radiators That 5%. that the further found remainder of plate glass court placed win- near hotel building, the construction cost of the outside and the so the cold dows supervised the defendant which was windows on the inside caused said heat t-( O CD’ Bismarck, $60,292 for build-
himself, and a number business was the sum ings and and else- commis- which the residences Bismarck was allowed commis- where the State of North Dakota. sion of The total amount of 3%. oral plaintiff under sion earned Harry Thompson, plumber Mr. A. $2,294 of which agreement the sum of testifying for due leaving a balance paid, had been plumbing stated he did some $1,794. The in the sum work on the Admiral Hotel that he had items district court disallowed occasion specifica- to examine the defendant, except the counterclaim prepared by plaintiff; they tions blocks granite cutting item *4 competently were drawn and in accordance the sum which allowed the defendant it with accepted practice. known and plaintiff leaving a balance due $1,694. H. M. Leonhard called for as a witness plaintiff profes- testified that he is a parties that stipulated by the It Bismarck, sional architect located in North lien plaintiff duly mechanic’s filed a had Dakota, practiced and that he archi- from the to be for the amount claimed due tecture acquainted since with 1921. He was was admit- copy thereof defendant and a plaintiff and was at one time associated plaintiff’s exhibit ted in evidence as practice with him in the of architecture. They in favor of Judgment was entered time had their office Man- dan, $1,694 inter- North Dakota. it in the sum He testified plaintiff’s me- known accepted practice pre- was a for foreclosure est and to 44, orig- block scribe so lien lot called wet chanic’s returns from steam ,of Bismarck, heating systems plat North to be inal laid under basement Dakota, floors was made sub- it judgment said where was to but desired finish rooms occupancy for the defend- mortgage basements hotel ordinate build- ings; Asso- Savings practice & Loan was lay ant Federal common First to pipes part North Dakota. floor ciation slabs as' radiant systems appealed heating used in recent are years; accepted demanded a de novo. common and practice to steam locate radiators ar- undisputed that is an It is large plate under glass windows in hotel studied architectural that he had chitect and lobbies; placed radiators were college at agricultural engineering at the places principally air Dakota, years and Fargo, three North for and to induce the circulation of He the air. year that the last he was there was in 1904. had occasion from time to time see went to Paul He then where he took St. specifications plaintiff, drawn nearly years a business course for two Ressler, Mr. for the construction of build- in the office of Buchner also worked & Ord ings and he would state from his observa- engaged Architects. These architects were tion that these were drawn accord- mostly in courthouse architecture or the accepted ing competent construction of courthouses. worked He manner. architects as a draftsman. After Mandan, went leaving St. Paul he , reference With breakage pro- engaged where he was in his glass lobby window architect and fession as builder. While specified single testified sheet double profession practicing his at Mandan he de- glass, glazed whereas the defendant places, built signed supervising several business himself made a and churches. He also built a change residences and installed what is called twin- school, thermopanes; church and near Dick- combination dows or the thermo- panes known the New Among inson Hradec. or twindows were more sensitive buildings designed that he other two heat and cold and sudden changes of banks, Baptist People’s temperature Old Home at than the glazed double win-. work plaintiff. notwithstanding not de- specified by such omis- dows . sion.” that defendant installed nied twindows thermopanes type oí instead of windows Paragraph 8, page 3 of exhibit pre- specified 1, provides: pared by plaintiff. “In case of doubt or differences dispute There is in the evidence some opinion toas the true intent pit. In the with reference to an elevator drawings specifications, the Archi- “eleva- words once, tect must be notified at and his appear give pit” tor the' it does not decision binding shall be final and excavating dimensions. The contractor parties : both . in-the contract.” equipment the basement moved his inquiry making' concerning Neither the contractor nor defend- pit although elevator it was indicated on ant consulted with the regard shaft, plans at bottom of the elevator the- complained the matters of as pit”. “elevator Because the excavation by quoted parts specifications. *5 equipment the had been moved elevator they complaints Had done so their could hand, pit dug by was additional cost undoubtedly have been adjusted without He was contends $551. difficulty. any responsible for same he had not specified pit the dimensions of the in the With reference to claim the of the de- plans. court, however, The trial held that lights fendant that the electric in the hall pit” ap- the the fact that words “elevator correctly located, the were not pearing specifications in the was Flurer, an electrician Carl and a witness put sufficient notice to the contractor on for the defendant testified that he install- inquiry, pit and the could have ex- specified lights ed the in the pre- cavated with much expense less the with by pared plaintiff. However, the the de- equipment excavating it was moved before later fendant had lights some those away. expense $200; at an moved additional is not shown but it the was Plaintiff’s specifications exhibit the with consulted reference to the location by prepared plaintiff page 1, contains lights lights or that the as installed following provisions: specifications according to the architect’s provide light sufficient did not for hall up “The making contractor his they placed. in which bid, drawings, shall examine the specifications entire contents of the is admitted that the had'made prepared work, for the in the gran- a mistake measurement of the thoroughly site to make himself famili- necessary ite slabs and that was to requirements. ar with all the If he Cloud, Minnesota, them to return St. information, should need further to them recut the correct have size. The opinion any errors, in his discover he by car to defendant traveled St. Cloud and get shall such information from the proper size, had the slabs recut twice making up Architect before bid, his expense plain- and claims an The $200. no price additions to the contract will that he would have tiff testified had the be allowed after bids have been sub- expense recut without slabs the defend- accepted. Specifications mitted and necessary it was not ant and for the drawings cooperate are intended to by to travel car to -St. defendant Cloud drawings should the omit illus- recutting have the done. specified, trate the work herein drawings should the held part trial court show defendant of the work since particularly is not entitled the recutting $100 mentioned specifications, was due slabs to an error part sanie shall be held to be plaintiff. specifications stated fáulty win for claim accepted architectural they conformed was with the basement grates for
dow Amick, practice. Roy testified parties and stipulation plumber, drawn pipes return under the that he laid the wet in the case. not an issue that he cement floor the basement Architects, page Section 3In Am.Jur. pipes the floor for leaks before tested the stated: 1001 is specifica That was laid. he followed the except. prepared by one tions how- undertaking, architect’s “The requested by He defendant. special agree-' ever, of a absence stated, pipes was caused the leak imply guarantee ment, does not reinforcing which someone a steel rod result, satisfactory but plan’ perfect pipes. through one of Mr. had driven exercise for failure to is liable Ritterbush, also architect degree care skill. reasonable testifying be care which skill and general had criticism of the preparation of an architect prepared work and ques- plans has been held his plaintiff. witnesses by the Several other jury.” tion for defendant, none of for the testified subject, volume and in the same And any particular or ma out pqinted. them 19, page it is stated: section terial defect prepared plaintiff. The defendant will held re- also “An part supervision major over took .the damages sustained sponsible *6 of the construction of the and must where, to unreasonable employer due responsible deviation from be held plans skill, lack his and negligence plans specifications prepared and the faulty and de- and .plaintiff. the undertaking his does not But fective. satisfactory a imply or warrant result. has been that suggested the record that no assurance miscalcula- There is plaintiff reg- was not a discloses Liability rests will not occur. tions n and was not architect therefore istered negligence, unskilfulness in entitled to recover this action under judgment. mere errors of not and provisions of Section 43r-0309 NDRC question negli- of the architect’s The which reads as follows: in, preparation plans is gence province within the fact and one of person “No shall architec- liable, The architect is not jury. profession in as a this state unless ture however, employer if has failed to (Board obtained board he plans important par- in an follow Architecture) regis- a certificate of damages result which and ticular registered archi- tration and is as an departure.” have been due such tect.” allegation complaint in issue one There is no case.is instant of, plaintiff registered is a whether defendant was that architect. fact careless, brought is alleged action to recover damaged reason commis- incompetent in and manner as an negligent preparing earned sions prepared speci plaintiff and for a and and hotel for the construction of defend fications during supervisor work construction given We careful con hotel. have plaintiff ant’s nowhere states thereof. to the evidence and entire registered architect,— sideration he is a contends have found the and evidence in testimony record he stated fact support the claims of the de architect, sufficient a registered was not he , registered H. M. registered be not have to fendant. did he Leonhard practicing practicing architect was a architect before the law of he became requiring registration effective. Bismarck, testifying regard
163 " that not within the alleges pleadings, was counterclaim not raised The answer and court, the trial himself out to not plaintiff “the did hold wás raised court, there is defendant in qualified registered architect” cannot appeal bar- considered on allegation or claim that taken on other wholly from re- bringing the action or different red from issues. on the claimed covering commissions After a careful consideration of the rec- ar- grounds registered not ord we conclude that the fact, of de- In VII paragraph chitect. trial court is correct and it is affirmed. counterclaim is “that fendant’s damages all of so suffered the de- ' BURKE, J., C. MORRIS entirely solely fendant have been due GRIMSON, JJ., concur. proximately plaintiff’s negli- incompetence.” gence, carelessness and JOHNSON,
The fact J., being disqualified, did architect was the participate, not made issue MILLER, HARVEY Dis- J. court, by either argued district was not Judge, trict sitting in his stead. appellant’s brief counsel this court. In are stated as
the issues follows: HARVEY MILLER, Judge. District J. appeal “The issues involved in the I dissent. this action are: Plaintiff seeks to recover for services Upon percentage “1. what architect, rendered as an and to foreclose value total of the construction of a mechanic’s lien filed by him to secure in. was the his claim. Nielsen, The defendant in his per- entitled receive and what 5% answer the complaint and in his coun- centage 3%? terclaim, among other things, alleged a denial, general plaintiff represented In de- “2. what amounts was the registered, himself to be a architect and consequence damaged as fendant prayed that nothing take by this faulty defective *7 The action. record plain- discloses that negligénce and the latter’s tiff was licensed or registered as an diligence lack of supervising state, in this which fact he ad- of work the contractor?” mitted on appel- cross-examination. The demands lant a trial de novo this Court. The issues stated were the argued in the trial court in this issues person practice “No shall architec- propo well rule'is settled that court. profession ture as a in this state unless be raised .the time sitions cannot first he has obtained from the board a cer- appeal. Ramsey County, Maher v. on 75 registration tificate register- and is 679; 760, 32 N.W.2d N.D. McDonald v. ed as an 43-0309, architect.” Sec. Abraham, 457, 75 28 N.D. N.W.2d 582. N.D.R.C. 1943. An not within the pleadings issue be or. provision This was orginally 58, Ch. 15§ fore the court cannot be considered the 1917S.L. as follows: (cid:127)when raised for first time before the appeal. Supreme Court Soderfelt v. person begin shall “No to use the 742, Drayton, 79 N.D. 59 N.W.2d any title ‘Licensed Architect’ or varia- to action on a note Defenses 502. same, words, or tion of others not be raised for the first time could device to letters dr indicate that the 720, Beckman, Bormann v. 73 appeal. N.D. person using the same ais licensed 19 N.W.2d architect, approval after the of this act, being registered whether Since as an architect, in recovery pro- on the accordance ground was barred from with the this he was not visions of act.” architect was 164 laws, statutes, section, rules by court, code all construing such this This state, wheth- 512, this 168 N.W. heretofore force Gillespie, 39 N.D. State v. provisions 1918, er not with the 11, “There consistent or 38, 40, May held: dated code, expressly unless continued practice of express prohibition it, repealed all and abro- person.” force are unlicensed architecture ” * * * 1-0219, gated. N.D.R. Sec. 58, 15, supra, was Ch. § Thereafter of 1943. C. Sp. Session 17 of 1919 Ch.
amended
be in
“This code shall take effect and
section,
per-
“All
such
by adding to
Laws
be fixed
force
such date
practice of ar-
engaged
sons not
gov-
proclamation of
therefor
prior March
profession
as a
to
chitecture
1-0235,
ernor.”
of 1943.
Sec.
N.D.R.C.
1918,
a license to
15,
obtain
shall
State.”
architecture
n Also,
connection,
in that
this court has
held:
clause, however, was
foregoing
omit-
present law.
ted
“In
the- codification of statutes
presumption
general-
obtains that
present
Question now arises whether the
change
codifiers did
intend
to
law or
of the former
law is a continuation
law;
changes
phrase
mere
enactment.
a new
ology
punctuation,
addition
our
legislature,
in the revision of
Our
words,
rearrangement
or the
omission
therein,
code,
set forth
the laws
re-enacted
parts
statute,
o
f
sections
of a
defining
statutes
con-
certain
including
placing
portions
of what for
given
provisions
struction
merly
single
separate
was a
section
Code, as follows:
Revised
sections,
operate
change
does not
operation,
meaning
effect or
law
“The rule
common'
changes
unless the
statute
are of
derogation thereof
are to be
statutes
as to
nature
clearly
un
manifest
construed'strictly
application
has no
mistakably legislative
intent
code establishes the law
this code.
law.” State ex rel.
former
Johnson
subjects
respecting the
this 'state
Broderick,
340,
75
27
v.
N.D.
N.W.2d
relates,
provisions
and its
which it
852;
Bell,
849,
Eisenzimmer v.
75 N.D.
proceedings under it are
con-
all
891;
733, 32 N.W.2d
Chester v. Einar
liberally,
effecting
with view to
strued
son,
76 N.D.
34 N.W.2d
35
justice.”
promoting
objects
its
137; Belakjon
Hilstad,
N.W.2d
v.
1-0201,
of 1943.
Sec.
N.D.R.C.
N.D.
165 1- chitect and which, Sec. demanded that provisions of under the abrogated take de- nothing. appeal, such he has supra, repeáled this On novo, simply manded a de trial original act. means that the case should be tried harmony with This is in conclusion same as if had not been tried before. cited, where- court above decisions of this in- pleadings issutes, the clear of what was formed the d supporte the deter- legislature was made evidence 'allegation! tent defendants’ existing 'plaintiff mining registered. an stat- factor as when was not That is one, or sue is earlier was raised ute a continuation of defendants’ answer and tnay a new That intent has coünterclaim in the enactment. 'District Court and (cid:127) clearly positively expressed in not be disregarded Sec. aón de novó 43-0309, may practicfe supra. person No Court. The rule that issues not regis- be raised for the appeal architecture without a certificate first time-ori n n ’ ' application in' tration. this case. my opinion plaintiff was is. entitled to It is that the recover- required practice ar- a license to to have I concur in tbe conclusion that' the de- chitecture; that the burden him -was fendant .entitled on reco.ver fact, prove such and therefore he is not counterclaim. entitled to action. recover contract, by person “A into entered occupation busi course of engaged
ness in which he .without
taking paying out a license or license law,
fee or tax as is void
and unenforceable where the statute or expressly ordinance vitiates con such
tracts, expressly prohibits/ or where it carrying occupation Meddaugh, E. E. GREEN H. and A. their license, permit, business without a own behalf and as and tax residents approval, tax, payment or the payers City Westhope, though expressly even it does not de Dakota, on behalf of other residents ”** clare such contracts to be void. taxpayers similarly situated, Plaintiffs 59, 711; C.J.S., Licenses, p. 53 Grant § Appellants, Weatherholt, Cal.App.2d 34, v. 123 266 v. 185; P.2d Minter Bros. Co. v. Hoch BESTE, Mayor City Leo West man, 562; 231 42 Minn. N.W.2d hope, municipal corporation, and A. O. Enterprises Comet Theatre v. Cartw Benthagen, Westhope, Auditor of Cir., right, 195 F.2d 30 A.L.R. Company, corporation, and W. H. Noel 2d 1229 and Annotation. City Westhope, municipal cor *9 poration, Respondents. Defendants and majority dispute do not that under 43-0309, N.D.R.C.1943, Sec. No. 7581. registered to be archi- Supreme Court of North Dakota. tect, urge that no issue was raised on emphasize March fact and even did not claim to registered be a architect. mandatory statute is
complaint does not state a cause of action. allegation regis- he was
tered. The defendant represented himself to be ar-