Chamberlain v. Smith
| Citation | 85 S.W. 645,110 Mo.App. 657 |
| Parties | S. E. CHAMBERLAIN, Appellant, v. W. H. X. SMITH, Respondent |
| Decision Date | 27 February 1905 |
| Court | Court of Appeals of Kansas |
Appeal from Jackson Circuit Court.--Hon. James Gibson, Judge.
AFFIRMED.
Charles H. Winston for appellant.
(1) The petition being based upon an express contract for a fixed and definitely agreed price to be paid by defendant for services rendered by plaintiff, it was error for the court to refuse to give the jury the instruction numbered 1 as prayed by plaintiff. Winter v. Railroad, 73 Mo.App. 194, 160 Mo. 159; Griffith v. Creighton, 61 Mo.App. 4; Brown v. Baker, 99 Mo.App. 660; Deutmann v Kilpatrick, 46 Mo.App. 29; K. B. Co. v Schoennau, 32 Mo.App. 357; Swaggard v. Hancock, 25 Mo.App. 606; Goodson v. N. M. A. A. Co., 91 Mo.App. 339. (2) The amount paid by defendant on account rendered for preliminary sketches or studies of house and barn was not the full amount which defendant agreed by the contract of August 2, 1902, to pay for those preliminary sketches or studies. Moreover, the amount so paid by defendant was never pretended to be paid for the work on the general drawings and specifications done under the express contract of August 2, 1902. Therefore, the second instruction asked by plaintiff ought to have been given by the court to the jury, and it was error to refuse to give it. See authorities supra.
I. N Watson for respondent.
(1) We do not dispute propositions of law contained in the cases cited by appellant in his brief. The point of law is well stated in Winter v. Railroad, 160 Mo. 178; School Board v. Hull, 72 Mo.App. 409.
Plaintiff is an architect and brought the present action against defendant on an account for professional services for drawing preliminary studies, plans, drawings, etc., for a dwelling house and a barn. The result in the trial court was in defendant's favor.
The evidence in behalf of plaintiff tended to prove that defendant engaged him to make "preliminary studies" for a house and a barn, and that he did so; that after defendant examined said preliminary work, he employed plaintiff to make general drawings, specifications and details for, and to superintend the construction of the buildings; that defendant agreed to pay therefor one per cent of the cost of the buildings for the preliminary work, and an additional one-half per cent for the general drawings, and an additional one per cent for the specifications, and an additional one per cent for detail drawings, and an additional one and one-half per cent for superintending the construction of such buildings. The cost of the building was estimated to be, for the house $ 30,000, and for the barn, $ 6,000. That plaintiff was to be paid as the separate services above stated were rendered. That plaintiff entered upon said employment and made the general drawings and the specifications; and that defendant thereby became indebted to him in the sum of $ 870; that thereafter defendant paid plaintiff $ 115 on such work, but refused to pay the balance of $ 755.
The evidence in behalf of defendant was for all practical purposes, in substance, a total contradiction of the contract as claimed by plaintiff. It further tended to prove that plaintiff rendered him an account for his services for $ 360, changed to $ 115 as follows:
for Archts. Services rendered (in pencil)
$ 115.00
for House & Barn, (erased with pencil)
$ 360.00
Paid in full, S. E. Chamberlain.
That he thereupon went to see plaintiff and told him the amount ($ 360) was much more than he should be charged; that he would not pay it; that it was "out-rageous." That he told him he had not ordered him to go ahead on the detail drawings and specifications, etc.; that in their dispute defendant offered him $ 100, which he refused; that he then offered him $ 110, which was likewise refused; that he then proposed that to avoid any trouble and to "settle and have the...
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