Bowell v. Draper

• Decision Date: 17 December 1910
• Citation: Bowell v. Draper, 149 Iowa 725, 129 N.W. 54 (Iowa 1910)
• Parties: C. J. BOWELL, Appellee, v. W. H. DRAPER, Appellant
• Court: Iowa Supreme Court

129 N.W. 54

149 Iowa 725

C. J. BOWELL, Appellee, v. W. H. DRAPER, Appellant

Supreme Court of Iowa, Des Moines

December 17, 1910

Appeal from Shenandoah Superior Court.--HON.W. P. FERGUSON, Judge

ACTION to recover compensation for architect's services rendered defendant at his instance and request. Defendant filed an answer and counterclaim and under the issues tendered the case was tried to a jury, resulting in a verdict and judgment for plaintiff, and defendant appeals.

Affirmed.

Earl R Ferguson and C. R. Barnes, for appellant.

D. L Wilson, for appellee.

OPINION

DEEMER, C. J.

As the questions presented for decision depend largely upon the issues tendered, these must first be stated. In the original petition plaintiff alleged:

That on or about the . . . day of February, 1909, the defendant orally engaged the plaintiff to draw and prepare for defendant's use plans and specifications for the erection and completion of a dwelling house to be built upon lot 260 in Priest's addition to Shenandoah, Iowa; that defendant agreed to pay plaintiff for said services the sum of two and one-half percent of the cost of the building to be erected in accordance with the plans and specifications furnished; that in accordance with said agreement, plaintiff prepared and drew plans and specifications and delivered same to defendant; that the building erected in accordance with said plans and specifications would cost the sum of $ 3,000; that plaintiff had performed every requirement imposed upon him by said agreement; that he has made demand upon defendant for the agreed price, but that defendant has refused and wholly failed to pay the plaintiff said amount, or any part thereof, excepting that plaintiff owes defendant the sum of $ 1.95 on account, which amount plaintiff has credited on this claim.

Defendant filed an answer in which, after denying generally, he pleaded the following:

Defendant admits that on the . . . day of February, 1909, the defendant and plaintiff entered into an oral agreement as set forth in plaintiff's petition by which agreement the plaintiff was to furnish plans and specifications for the erection and completion of a dwelling house, as stated therein, said plans and specifications to be completed within sixty days after said contract was entered into and to be for a house which was not to cost in total over $ 3,000 after completed and delivered to defendant; and the defendant was to have the privilege of submitting said plans and specifications to contractors before finally accepting said contract. For further defense defendant states that the said contract was not performed by the plaintiff or executed in any manner in accordance therewith; that the plaintiff did not complete or deliver to the defendant the said plans and specifications until on or about the 1st day of June, 1909; and that said plans and specifications then furnished him were not such as to constitute a performance of said contract; and that defendant never accepted them as such. That at the time the contract was entered into, the defendant stated to the plaintiff that it was very necessary for him to have the plans and specifications in his hands within sixty days thereafter; and that time is an element of this contract. That the plans and specifications were not drawn in a good and workmanlike manner, were absolutely useless to the defendant, for the purpose for which he had contracted to have them made; that they were negligently and without proper attention drawn by the plaintiff, who must have known that they were useless to defendant; and that in no manner did the plaintiff perform his part of said contract.

In addition to this he pleaded a counterclaim which need not be set out. In a reply plaintiff

Admits that the plans and specifications referred to in his petition and defendant's answer were to be furnished and ready for delivery within sixty days after said contract was entered into and admits that originally and at the beginning of the conversation and arrangement it was understood that said plans should be for a dwelling house not to exceed $ 3,000, but avers that he furnished a number of rough sketches to the defendant, all of which houses could have been built at a cost not in excess of that amount. Plaintiff further avers that from said sketches defendant selected a plan that in a general way met his approval, but suggested that the plaintiff make changes therein and additions thereto. That in accordance with said suggestions plaintiff made changes in the original plan or sketch, but informed the defendant that such changes would add to the cost of the building completed. During the process of preparing and deciding upon the plans and specifications, defendant made numerous and various suggestions of changes to be made, all of which plaintiff made, and defendant approved of. That finally plaintiff presented to defendant a pencil sketch embodying the first sketch and the changes and additions suggested by plaintiff, which defendant approved and accepted, and ordered plaintiff to proceed and complete the plans and specifications in accordance therewith at once. That plaintiff proceeded with the work and copied from said pencil sketch regular, printed blue prints and prepared specifications to meet the wishes expressed by defendant. Plaintiff denies that defendant was to have the privilege of submitting said plans and specifications to contractors before finally accepting the same, and denies that there was any understanding or agreement that time was of the essence of the contract, and states the only mention of time was that defendant wanted the plans within sixty days.

Thereafter and during the trial of the case plaintiff, over defendant's objections, filed an amendment to his petition in which he alleged:

Plaintiff says that the oral contract set out in his petition required that he should furnish plans and specifications for a building to cost not over $ 3,000. That the defendant waived this limit of cost by requiring the plaintiff to make changes and additions to the original sketch, which was for a building which would have cost from $ 2,500 to $ 3,000. That plaintiff informed defendant that all these changes and additions would add cost to the house when completed. That defendant informed plaintiff that he wanted a house to suit him and his wife. That defendant directed plaintiff to complete said plans and specifications with said changes and additions. Plaintiff says that he promised to have said plans and specifications ready by April 1, 1909, if he could only.

These were the issues made by the pleadings and upon which the verdict was returned and the judgment rendered. Something like fifteen errors are assigned, but the argument is confined to ten and many of them are so closely related that they may be disposed of without separately considering all the points made.

I. The only dispute as to the original contract had reference to the question as to whether or not the plans were to be submitted to a contractor before final acceptance. This was affirmed on one side and denied on the other, and the issue thus presented was for the jury.

II. Plaintiff claimed that he performed all the terms of the contract by him to be performed, save such as were waived by defendant, and that when waived he complied with defendant's requests in the matter. Defendant denied this, and his counsel now claims that plaintiff did not perform, because he did not furnish specifications for the...