101 Mo. 534 | Mo. | 1890
The defendant corporation, having in contemplation the erection of a building for exposition and music hall purposes, adopted, and on the nineteenth of April, 1883, sent to the plaintiff and to other architects, a copy of the following resolutions:
“First. That all architects, residents of this city, and five non-residents, be invited to prepare and submit designs.
“ Second. That, from those presented by residents, seven, which shall be considered the most meritorious, shall be accepted and awarded five hundred dollars ($500) each, and the five presented by non-residents shall each be awarded the same amount. All designs for which you pay five hundred dollars ($500) shall be the property of the association.
“ Third. That it be understood that any foreign architect may submit a design, but, if not accepted as the most irferitorious of all,, he will receive no compensation, and his design shall be returned.
“Fourth. The architect who is successful shall not receive the five hundred dollars ($500), but he shall be engaged as architect-and superintendent, and shall be paid, for performing such duties, the usual commissions as adopted by the American Institute and the St. Louis Institute’of Architects.”
The fifth, sixth and seventh resolutions provide when the plans shall be delivered to the secretary ; that they shall be without names or marks to indicate by
The eighth is as follows: “The said designs and specifications shall be for a building to cost not over four hundred thousand dollars ($400,000) exclusive of power, electricity and elevator machinery, arrangements for which, however, must be made.”
Others go on to recommend architects to include in their designs the following features: The building to cover not more than four hundred and eighty by three hundred and twenty feet, to have within it a music hall to seat four thousand persons, and a small hall to seat twelve hundred persons, and to have a basement, fine art rooms, a floral hall, etc.
Pursuant to these resolutions the plaintiff, a resident architect of St. Louis, submitted in the proposed competition two sets of plans, one called “Dignus Laudie A,” and the other “ Dignus Laudie B,” anda number of other architects, both resident and non-resident, submitted one set of plans each. It is alleged in the petition, among other things, that defendant’s board of directors gave to one of plaintiff’s plans the award of highest merit, that he thereby became the successful architect within the meaning of said resolutions, so that defendant became bound to employ him as architect and superintendent at the specified compensation ; but that defendant made breach of its agreement to the.plaintiff’s damage in the sum of twenty thousand dollars, and for which sum he prays judgment. These averments are denied, aDd the answer then states that, after plaintiff submitted his plans, he, with the consent of the defendant, waived and abandoned any claim or right to become the architect and superintendent of the building under and by virtue of said resolutions ; all of which is denied by the reply. These issues were submitted to a jury, and were found for the defendant, and plaintiff appealed.
A contention made in this court by the plaintiff is that defendant, by its plea of waiver and abandonment,
The plaintiff insists that the evidence is conclusive to the effect that an award of greatest merit was given to his plans, so that any contrary finding by the jury should be set aside; and that there is no evidence to support the plea of waiver and abandonment. As the ■briefs devote much space to a discussion of these questions, it becomes necessary to set out a condensed history of the case made by the evidence.
On the ninth of July, 1883, the defendant’s board of directors proceeded to select seven plans presented by resident architects,entitled to the award of five hundred dollars each. This having been done the board had before it nine plans from which to select the set of greatest merit, seven furnished by resident and two by non-resident architects. The plaintiff’s plans called “Dignus Laudie A” were of the nine. The directors then employed two experts to meet with them and hear the architects explain their respective .plans. At a meeting held by the board on the next day, and while plaintiff was explaining his plans, the question was asked him if the building could be constructed as he had designed it for four hundred thousand dollars, to which he answered that he came prepared for the inquiry. He then presented to the board of directors a bond signed by himself, whereby, in consideration that the board appointed him architect and superintendent of the building with the compensation specified in the resolutions, he bound himself, in the sum of thirty thousand dollars, that the building would not cost, if erected under his plans, to exceed three hundred and ninety-eight thousand dollars.
On the twentieth of July the board of directors adopted this resolution: “That we now go into the ballot for the favorite plan, considering only the five plans already selected. To drop the plan receiving the lowest vote, and then to vote upon the remaining, and so to continue until one of the five shall have been selected by a two-thirds vote ; all, however, to be done with the understanding that the plan shall be so modified or changed as to suit the views of this board, and to cost not to exceed four hundred thousand dollars ($400,000), and, in case the plan selected cannot be made to suit the wishes and requirements of this board, it will be abandoned, and the other four plans again come before this board for action.” Pursuant to this resolution a vote was taken which resulted in the selection of plaintiff’s plans. The board of directors then passed a resolution appointing a committee to confer with the plaintiff and ask him to change his plans to conform to the wishes of the board. This committee was also directed to examine the amount and kind of security which the plaintiff proposed to give as a guaranty that the building would cost not more than four hundred thousand dollars.
On the eighth of August, the directors adopted the following resolution: .“It was moved and seconded that the plans and specifications submitted by Mr. Thomas Walsh, architect, be selected as the best plans and specifications for the proposed exposition and music halls, and that he be sele'cted as the architect of said building, to become so in fact when his amended plans and specifications submitted to-night, together with the contract and bond under which this building is be erected, are presented to and approved by this board.
“ On motion, it was ordered that a committee consisting of the president, Mr. Franklin and Mr. Givens, experts, proceed at once to get plans and specifications perfected, and also that a bond from Mr. Walsh be obtained for presentation to this boai’d for approval.”
On the next day the defendant’s secretary notified the board of public works of the city of St. Louis that plans and specifications were then ready to be submitted to that body for approval. In about ten days
After much negotiation between the plaintiff and the defendant’s directors, and the preparation of three or four proposed contracts, the parties supposed they had come to'an understanding. The contract, however, was not consummated, each party claiming on the trial of this case that the other refused to sign it. On the sixteenth of August the plaintiff addressed a communication to the defendant from which it appears the directors had agreed to allow him four hundred and eleven thousand and fifteen dollars, as the cost of the building, whereas he demanded four hundred and twenty-five thousand dollars ; and in which communication he said that, unless the concession could be made to him, he declined to enter into the proposed agreement. The directors thereupon passed a resolution to the effect that, as Thomas Walsh had declined to consummate his agreement in regard to the plans and specifications, “we do proceed to discuss other plans and specifications.” On the next day the directors resolved to remit a check of five hundred dollars for each of the seven plans selected as the most meritorious of those presented by St. Louis architects.
The defendant read in evidence a letter from its president to plaintiff dated twentieth of August, 1883, wherein the president makes reference to the fact that defendant had, on a previous day, tendered plaintiff a check for five hundred dollars in payment of the premium under the second of the resolutions of the nineteenth of April, 1883, and he then goes on to renew the tender of a check for the above amount and concludes by saying, if plaintiff preferred, his plans would be returned in lieu of the check. This letter was supplemented by the evidence of the defendant’s assistant secretary, who testified that he called upon plaintiff on two different
So far as we are advised, the board of directors did not take any further action upon the other four plans, but employed Mr. Legg as architect and a Mr. Given as superintendent. Mr. Legg made new plans under the advice and directions of the directors, and the building was built according to them at a cost of six hundred thousand dollars. The plaintiff offered much evidence to the effect that the building as erected is the same as his design after he had widened music hall and changed the location of the small hall, save as to the style of the architecture in the principal elevations; that in all material respects the building erected is the same as the one designed by him. On the other hand, the defendant introduced evidence to the effect that the building is like several of the plans put in competition, and that it is more like the plans submitted by Mr. Jansen than those submitted by plaintiff; that plaintiff’s plans were
When the defendant offered to read in evidence the letter of its president addressed to the plaintiff dated August 20,1883, and before set out, the plaintiff objected on the ground of irrelevancy and immateriality. This letter is but a part of the evidence concerning the tender of five hundred dollars to the plaintiff. Taken in connection with the other evidence concerning the tender, it was both relevant and material. It makes proof tending to show that the defendant’s directors had not given, and at that time did not intend to give, to plaintiff’s plans the award of greatest merit under the resolutions inviting the competition between architects ; for, by the second of those resolutions, he would not be entitled to the five hundred dollars, if his plans were declared the most meritorious of all. Again, by the terms of those resolutions, the defendant became the owner of the plans for which it paid the award of that amount, and, of course, became entitled to use all such plans. The defendant having a right to use the plaintiff ’ s plans, the evidence offered by the plaintiff, concerning the similarity between his plans and the building as erected, becomes of little or no value to the plaintiff. The evidence to which the objection was made was, therefore, relevant and material on the issue as to whether the directors gave the plaintiff’s plans the award of greatest merit, and was properly admitted. It matters not that it has no particular bearing upon the issues of waiver.
2. The next and the most important question in this case is, does the evidence . show, as the plaintiff contends, conclusively that his plans were, by defendant ’s director's, declared the most meritorious of all that were placed in the competition ?
There can be no fair claim made that the directors made any such award prior to the twentieth of July;
The contract mentioned in this resolution has reference to the contract then under negotiation, but not yet consummated, looking to the appointment of plaintiff as architect and superintendent in consideration that he gave security to be approved by the board that the building, erected in strict accordance with his plans, would cost not exceeding a designated amount. This resolution makes no present award of greatest merit to plaintiff. He is to become the architect of the building only when his amended plans and specifications and the contract and bond are presented to and approved by the board of directors. Here, again, there is no final
The letter of the defendant’s secretary, addressed to the board of public works of St. Louis, if taken by itself, would indicate that plans had been selected, and the plans to which he refers in this communication must have been those prepared by the plaintiff. But that letter must be read in the light of the resolution passed by the board of directors, and when this is done there is still nothing more than a conditional, and not a final, selection of the plaintiff’s plans.
At this point we may look to the resolutions of the nineteenth of April inviting the competition, and determine their scope and meaning; for it is on them that plaintiff founds his cause .of action. By their terms it became the duty of the defendant’s directors, after having determined what plans were entitled to the award of five hundred dollars each, to select the set deemed to be the most meritorious of all. The author of this set became entitled to be employed as architect and superintendent at the specified compensation. The resolutions limit the cost of the building to four hundred thousand dollars ; and, in making the award of greatest merit, it was the duty of the directors to consider the cost as well as the appearance, convenience and durability of each proposed structure. The directors were the judges of all of these matters, the one as much as the other. The plans of greatest merit having been selected and the final award thus ascertained, the directors could make such changes as they saw fit and proper. But the plans should have been considered for the final award as they were presented, and that, too, without calling upon any architect to give security as to the cost of the structure. All this was due to the other architects who placed their plans in the competition. The fact that the directors deviated from the line of their duty cannot aid the plaintiff in this suit, even if we lay aside the fact that plaintiff was himself a
The resolutions of the twentieth of July and eighth of August do not show that an award of greatest merit was made to the plaintiff’s plans under the provisions of the resolutions inviting the competition. They show affirmatively that no final award was made, either under those resolutions or on the basis of the new proposed contract calling for security as to the cost of the building. The other evidence showing a similarity between the building and the-plaintiff’s design, standing alone, would be of some value to the plaintiff ; but it is much weakened, if not wholly overcome, by the other evidence showing a similarity between the building and several of the designs placed in competition. But the similarity between the building and plaintiff’s design ceases to be of any value in the light of the fact that defendant tendered him the five hundred dollars, and thereby became the owner of and entitled to use his plans. The defendant, it is true, did not tender the money, only its check upon the bank with which it transacted business. The tender here was made by check, once by the assistant secretary, and again by the letter of the president of the defendant association, which was dated the twentieth of August. The plaintiff refused to receive the money, not because it was tendered by way of a check, but because he claimed the appointment of architect and superintendent. By declining'to accept the award of five hundred dollars, the plaintiff waived the production of the money. Berthold v. Reyburn, 37 Mo. 595; Whelan v. Reilly, 61 Mo. 568.
3. The next question is, whether there is any evidence to support the defense of waiver and abandonment.
The proposition made by the plaintiff, and considered by defendant, introduced at least two new elements into the award. The resolutions, inviting the competition do not require any architect to give security as to the cost of the structure, nor do they require the building to be erected in entire conformity to the plans awarded the greatest merit. The proposed contract between the plaintiff and defendant contemplated both of these new elements. It is. surprising that such an offer should have been made by plaintiff or considered by the defendant; for if accepted it placed plaintiff in a position where his interests would be at war with his duty as superintendent. Had the proposed agreement been consummated, the plaintiff would have received the appointment of architect and superintendent, not by virtue of an award under the resolutions .of nineteenth of April, but, in part at least, because of the new contract, and there would have. been, to a certain extent, an abandonment of the terms of those resolutions. The parties may, however, have carried on these negotiations, intending all the while to return to the resolutions, if the new agreement should not be consummated. The proposed bond and contract and the negotiations in respect thereto do not, as a matter of law, as is urged by defendant, amount to an abandonment of the resolutions. That question is one of fact and not of law in this case.