Bergholtz v. Oregon City

• Decision Date: 20 October 1925
• Parties: BERGHOLTZ v. OREGON CITY.
• Court: Oregon Supreme Court

240 P. 225

116 Or. 18

BERGHOLTZ v. OREGON CITY.

Supreme Court of Oregon

October 20, 1925

Department 2.

Appeal from Circuit Court, Clackamas County; J. U. Campbell, Judge.

Action by Edmund Bergholtz against Oregon City, a municipal corporation. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an appeal from a judgment for the recovery by plaintiff of $750 for services rendered by him, as an architect, to Oregon City, defendant herein. In its assignments of error, the defendant asserts that the trial court erred in denying its motions for nonsuit and directed verdict, and that "there was manifest error in the admission of evidence and exhibits on the part of plaintiff * * * over the objections of defendant."

Wm. M Stone, of Oregon City, for appellant.

L. E Schmitt, of Portland, and J. E. Hedges, of Oregon City, for respondent.

BROWN J.

The plaintiff is an architect. The defendant is a municipal corporation. By the vote of the people of Oregon City, its charter was amended to provide bonds in the sum of $35,000 for the erection and construction of a city hall. The city council agreed upon a site for the building, and, upon their invitation, the plaintiff, as well as other architects submitted plans and specifications for the construction of the structure. The plaintiff's plans and specifications were selected by the council as suited for the erection of a city hall upon the site chosen, and were adopted upon the condition that the cost of the construction of the proposed building would not exceed the sum of $35,000, the amount authorized. The council enacted an ordinance empowering the mayor and city recorder to execute a contract with plaintiff employing plaintiff, as architect, to furnish plans, specifications, and detailed drawings, and to superintend the construction of the building. The written contract was duly executed, and on its execution the defendant paid plaintiff the sum of $300 thereunder.

When this action was instituted, the contract was made a part of the pleadings, and, on the trial of the case, was offered and received in evidence. In explaining to the jury the issue made by the averments of the pleadings, the court said, among other things:

"The said agreement further provides that, in case the work is abandoned before the competion of the same, the plaintiff was to receive for preliminary studies, general drawings, specifications, and details, 3 per cent. of the estimated cost of said building; that in pursuance to said agreement the plaintiff did prepare complete plans, working drawings, together with specifications and all necessary details promptly, and submitted the same to the defendant, and the same were duly accepted and approved by the said defendant, and the contract for the construction of said building has been let. * * *

"The defendant comes in and sets up a copy of the contract actually entered into, * * * and, in addition to that, alleges, in effect, that the plaintiff agreed to furnish plans and specifications of a building that could be erected for $35,000, and that the building that would be erected from plans and specifications he furnished would cost much more than that; and consequently that the plans were worthless. * * *

"It is agreed that, in case the work is abandoned before completion, and I instruct you as a matter of law that the work meant is the work of the plans and specifications and superintending of the building, if that work was abandoned, the architect is to be reimbursed as follows: * * * 'For preliminary studies, general drawings, specifications, and details, 3 per cent., as payment in full for all drawings furnished to date of estimated cost.'

"I instruct you as a matter of law that that would mean 3 per cent. of the estimated cost of the part of the building for which he had furnished preliminary studies, general drawings, specifications, and details."

To the construction placed upon the contract by the court in the foregoing instructions, neither the plaintiff nor the defendant objected.

The testimony shows that at the direction of the city council the plaintiff advertised for bids for the construction of a city hall, all of which were rejected because they were above the sum of $35,000. Following the receipt of the bids, the plaintiff, at the request of the city council, made changes in his plans and specifications that would have reduced the cost of construction of the building, and there is testimony tending to show that under the revised plans and specifications the city council could have constructed the building for $35,000. The record further shows that the city council notified the architect that he had 7 days in which to procure a contractor for the construction of the city hall, but that thereafter it met and rejected the revised plans and specifications for the building and the proposed contract for its construction, thereby paving the way for the selection of a new building site, and decided to submit the question to the legal voters of Oregon City. The subsequent selection of the new site necessitated different plans and specifications for the construction of a suitable building thereon.

The defendant assigns as error the overruling of its motions for nonsuit and directed verdict. It is a rule of law that, when a motion for a nonsuit or a directed verdict is made, the grounds therefor must be precisely and specifically stated in the motion. In the case at bar, the motion was made orally, and the grounds for such motion are somewhat involved...