Antonoff v. Basso, 27

• Decision Date: 01 October 1956
• Docket Number: No. 27,27
• Citation: 347 Mich. 18,78 N.W.2d 604
• Parties: Steven ANTONOFF, individually and doing business as Steven Antonoff and Associates, Plaintiff-Appellant, v. Victor J. BASSO, Defendant-Appellee.
• Court: Michigan Supreme Court

Page 604

78 N.W.2d 604

347 Mich. 18

Steven ANTONOFF, individually and doing business as Steven Antonoff and Associates, Plaintiff-Appellant, v. Victor J. BASSO, Defendant-Appellee.

No. 27.

Supreme Court of Michigan.

Oct. 1, 1956.

Wilfrid L. Burke, Detroit, for plaintiff and appellant.

Kelly, Kelly & Kelly, Detroit, for defendant and appellee, Sigmund A. Beras, Detroit, of counsel, for appellee and crossappellant.

Before the Entire Bench.

SMITH, Justice.

This is assumpsit on a written contract with the common counts added as count 2 Steven Antonoff individually and doing business as Steven Antonoff and Associates, is the plaintiff. He is a registered professional engineer and is suing an architect, Victor J. Basso, by whom he was once employed.

The parties first met in 1949. The plaintiff was branching out on his onw as an engineer, and, in the process of scratching up some business, called on defendant Victor J. Basso. We need not review their exploratory conversations or work projects. Apparently they were satisfactory to both parties, for plaintiff was retained by defendant to prepare the structural, mechanical and electrical engineering plans for the Mercywood Hospital in Ann Arbor.

The plaintiff commenced his work in May of 1950. It is the duty of the engineer, we are told, after he had received the preliminary plans of the architect, to prepare the detailed engineering drawings:

'When a professional engineer [testified Antonoff] works for architect he offers an engincering service to an architect in structural, mechanical and electrical fields. He provides the frame, in structural fields, he provides piping, that is plumbing, he provides the boilers for heating purposes, he estimates the heat, heat losses and he specifies the sizes of the radiators. In the electrical field he provides the needed power of lighting and such other things as an architect directs him, or asks him, or tells him, or passes on the information for the client.

'When we talk about architectural design, the architect conceives the structure in each form, understand, as such, he subdivides the room, he allocates the occupancy of these various rooms and tells the engineer. That is that, you see, the engineer takes it up from there and provides the blue prints to carry the structure on the frame, and gives the heating equipment, designs, heating equipment, and the electrical, lighting or outlets or whatever the architect wants him to do.'

Plaintiff submitted his engineering plans and specifications, so prepared, to the defendant on or about September 30, 1950. Shortly afterward he sent defendant a bill for $15,760 for engineering services rendered. Mr. Basso was 'aghast,' he says, when he received this invoice. 'I just didn't know whether he had made a mistake or what it was so I called him and told him he had better got down and meet with me and go over the figures and for him to check it, that these are away out.' Plaintiff did come down. They discussed the matter and signed an agreement with respect thereto. The versions of the parties differ as to what took place at the signing, and the reasons therefor. The entire record, in fact, is marked by a series of irreconcilable contradictions. The divergencies of the parties with respect to the discussion above mentioned are characteristic. According to plaintiff he had no idea why defendant wanted a signed contract, and did not know even at the time of trial. His version runs substantially as follows:

'As to my bill Mr. Basso mentioned it. He told me that the bill was very reasonable and it wasn't high, and I said 'Yes, I was very successful in cutting the expenses to the bone and passing it on' and I said 'I told you sometime before when you were asking me how much it is likely to cost that it will not be high' and Mr. Basso was perfectly satisfied.

'Q. You also testified yesterday on direct examination that you didn't know why Mr. Basso wanted a contract? A. No, I don't, I even now don't.

'Q. And there was some argument as to whether you should receive one percent, one and a half percent, two percent of what? A. Of the cost. They were not--when I gave him this one, understand, he said that was very nice but he wanted to get a contract for some reason. 'Now will you sign a contract with us for one percent?'

'No.' 'For two percent?' 'No.' 'For two and a half or so?' 'No.' 'For three percent' Three percent is likely to be high. I don't know why. No, he wants a contract on it, and I signed it with him.

'Q. He wanted a three percent contract even though it was supposed to be high? A. Yes. Whether he knew whether it was going to be higher or lower than that, I don't know.

'Q. That was a pretty bad risk on his part? A. On whose part?

'Q. On Mr. Basso to sign that contract with you. A. I can't explain what was back of it.'

According to Mr. Basso, however, what was back of it was an effort to reach agreement as to fees, both parties agreeing that there was no fee arrangement at the time the work was undertaken. Defendant Basso testified that he first protested the fee requested:

'I say didn't he know when he brought there (these?) figures here, I told him, I said 'Don't you know how much this building was going to cost?' and he says 'Yes, you told me around a million dollars.' Well, I says 'Yes, how do you figure that the structural--these type offers in here, they are very ridiculous.' I says, 'If I pay you this kind of fees it certainly does not leave anything for my fees and my work is certainly twice as much as your work, besides hiring you, you are one of my subordinates.' I says, 'That is not fair at all.' The invoice also says 'fees to date.' I says, 'Your plans are not complate.' I says 'You have lots of work to do.' He says, 'Yes, yes, I know it, I have a lot of work on the plans too and there is a lot of work, you know how the jobs are.' Changes are made every day as long as the job goes.'

He then proposed to sign a contract for 2%. This plaintiff Antonoff refused.

'Then I suggested to him, 'I have been paying two percent. There is work coming in here.' I said 'Will you be satisfied if we sign a contract now, I am not trying to gyp you or anything. I will give you two percent. You know what it was. I will sign a contract for two percent.' Well, he jumped out of that chair. I thought he would hit the ceiling, he jumped on the floor, he said 'I can't do business with you. I can't do that. I am losing money right here.' He says 'I am losing money for these figures.' 'Well,' I says, 'all right, you know there is a lot of work to be done. I am busy. Let's get this thing straightened out.' I says 'I would like to pay you a fair wage and everything and I like to coordinate things' and I says 'How much would you want?' And I says 'Now don't forget there is work to be done and there is supervision to be done.' Well, he hemmed and hawed back and forth for a while and then he came up with a figure and said 'I will do some supervision for you and do all changes you want. I don't care how many changes you want.'

It was as a result of these negotiations, and these discussions as to the reasonableness of the fee submitted, that the agreement between the parties, hereinafter set forth, was executed. Plaintiff was paid on the date the sum of $5,000, in addition to which he was paid $2,500 on subsequent occasions. We note in passing that under these circumstances there was ample consideration running to both of the parties hereto.

Little occurred now for about a year. Sewage disposal facilities in Ann Arbor were incomplate. At approximately the end of the period, on December 12, 1951, defendant wrote to plaintiff, telling him that bids had been invited from several contractors 'on your plans for Mercywood Sanitarium,' that the plans had been criticized in various particulars, and concluded by informing plaintiff that:

'The above criticism by reliable practical men in the field leaves me no choice but to request that your plans and specifications be corrected, redesigned in a practical manner, and properly coordinated with a complete set of specifications before final payment for your services could be considered.'

(Previous to this defendant had orally complained to plaintiff of objections to the plans by contractors.) It was at this time that the 'two parties got into a wrangle * * * and there was a parting of the ways.'

Plaintiff asserts that he never received precise criticisms of his plans, that what he received was merely 'a general complaint, very vaguely put.' Nevertheless he looked over the plans 'in view of the complaints that were made,' but, he testified, he 'could not find any justification for the complaints.' His letter to defendant, dated June 25, 1952, is to the same effect; he finds 'no cause for your rash and unjustified claims.' It was the position of the defendant, on the other hand, that the plans and specifications of the plaintiff were not in accordance with the requirements of the Sisters of Mercy, and that, at an early meeting, defendant had told plaintiff that the work was being undertaken for the Sisters of Mercy, who had certain standard requirements for their many hospitals, with which he would have to conform. (There is no question but that the architectural plans as finally drawn in 1952 were different from the plans submitted in 1950. The revisions were partly at the request of the sisters of Mercy, and partly upon information secured by the defendant from specialists in the various fields.)

As a result, then, of the complaints made, and following plaintiff's letter of June 25th, a meeting between the parties was held. Defendant described it in part as follows:

'The plans were discussed and his fees were discussed. Well, the plans were not correct. The Plans and specifications they could not tie in with each other and there were numerous errors and omissions, the plans weren't clear, the dimensions weren't read, you couldn't read...