Cann v. Rector, Wardens, Etc., of Church of Redeemer

• Decision Date: 21 February 1905
• Court: Missouri Court of Appeals
• Parties: CANN et al. v. RECTOR, WARDENS, AND VESTRYMEN OF CHURCH OF THE REDEEMER et al.<SMALL><SUP>*</SUP></SMALL>

85 S.W. 994

111 Mo. App. 164

CANN et al. v. RECTOR, WARDENS, AND VESTRYMEN OF CHURCH OF THE REDEEMER et al.^*

St. Louis Court of Appeals. Missouri.

February 21, 1905.

CONTRACTS — BREACH — ACTION ON CONTRACT — ACTION ON QUANTUM MERUIT — CONSTRUCTION OF PETITION — CONSTRUCTION OF CONTRACT — AGENCY — RECTOR OF CHURCH — IMPLIED POWERS — RATIFICATION.

1. A party who has failed to fully perform his part of a contract may recover on a quantum meruit for benefits resulting to the other party from the partial performance.

2. A party prevented from performing his part of a contract may sue on a quantum meruit for what he has done already toward performance, instead of seeking damages on the contract for breach.

3. Where defendant had committed a breach of a contract between himself and plaintiff, plaintiff's petition alleging a waiver of damages, and asking only for the reasonable value of what he had done, the fact that the terms of the contract were stated in the petition did not show the action one on the contract rather than one on a quantum meruit.

4. A petition in an action by architects, asking not only for the value of work actually done by them in making plans at the contract price, but also for the remuneration that they would have earned by superintending the construction of the building if the contract had been carried out, could not be construed as stating a cause of action on a quantum meruit.

5. Where a contract between the vestrymen of a church and architects required the architects, "under the direction and to the satisfaction of the owners," to provide all plans and specifications, etc., for the erection of a church building, and the architects prepared plans without asking any information as to the cost of the building, the vestry had the right to reject the plans, in good faith, on the ground that they called for too expensive a building.

6. Where a contract between architects and the vestrymen of a church required the architects to prepare plans, etc., for a proposed building, to the satisfaction of the vestrymen, the fact that the plans drawn were in the hands of the rector for five or six weeks, and that a picture of the perspective of the building was framed by the vestrymen and hung in the vestry room, did not show an acceptance of the plans, so as to preclude their rejection on the ground that they called for too expensive a building, it not appearing that the vestrymen had any knowledge as to what the cost would be.

7. Where a contract between the vestrymen of a church and architects required the latter to draw plans for a proposed church to the satisfaction of the vestrymen, such contract restricted any authority in the rector of the church to bind the church, by his agreement with the architects relative to the plans, which the law might otherwise have implied from the rector's position as president of the vestry.

8. In the absence of any evidence concerning the usual functions of the presidents of vestries of Episcopal churches, the rector of such a church, who is president of the vestry, has no implied authority to bind the church by his agreement with architects in relation to drawing plans for a church edifice.

9. The appointment of an agent of a corporation need not be by resolution or formal vote of the directors or trustees, but he may be appointed informally without vote or resolution.

10. The appointment of an agent by a corporation through its directors or trustees must be taken by the directors or trustees when assembled as a board, and cannot legally result from the assent of the majority given singly when not so assembled.

11. In an action by architects against a church to recover for their services in drawing plans for a proposed church edifice, evidence considered, and held insufficient to show that the rector was given any authority by the vestry to bind the church by contracting with the architects.

12. Where a contract between the vestrymen of a church and architects required the latter to furnish plans for the erection of a proposed church to the satisfaction of the vestrymen, a rejection of the plans by the vestrymen on the ground that building prices at that time were unreasonable, and that it would be expedient to postpone the building, did not relieve the church from liability for the plans.

13. In an action by architects against a church to recover for the value of plans drawn for a proposed church edifice, evidence considered, and held insufficient to show that the rejection of the plans was not in good faith on the ground that they called for too expensive a building.

Appeal from St. Louis Circuit Court; M. N. Sale, Judge.

Action by W. A. Cann and another against the rector, wardens, and vestrymen of the Church of the Redeemer and others. From a judgment in favor of defendants, plaintiffs appeal. Affirmed.

Crawley & Jamison and X. P. Walfly, for appellants. F. H. Sullivan, for respondents.

GOODE, J.

The plaintiffs are partners, and the defendant church is a body incorporated under the name of "Rector, Wardens, and Vestrymen of the Church of the Redeemer of the City of St. Louis." The defendant Charles A. Trotman is president of the vestry and rector of the church. Originally some of the vestrymen were made defendants, but at the outset of the trial a dismissal was entered against every one except the corporation itself and the rector. At the same time the plaintiffs waived and abandoned any claim for damages resulting from the defendants' having refused to go on with the construction of the building, which claim was laid in the following paragraph of the petition:

"And that, by reason of the failure of defendants to carry out the contract with plaintiffs, plaintiffs have been damaged in the sum of one and one-half (1½) per cent. of one hundred and twenty-three thousand seven hundred ($123,700) dollars, or the sum of one thousand eight hundred and fifty-five dollars and fifty cents ($1,855.50)."

The answer of the corporation averred that, at the time the written contract between the plaintiffs and it was made, the former were instructed that the plans and drawings to be prepared by the plaintiffs should be such that the cost of the basement of the house to be erected in conformity to them should not exceed $9,000, and the cost of the entire building not exceed $60,000; that, contrary to this instruction, plaintiffs prepared plans and specifications for a building whose basement would cost not less than $27,000, and the entire edifice not less than $123,700. Said instruction is averred to have been a part of the contract between the church corporation and plaintiffs. Another defense stated is that the plans, specifications, and detailed drawings which plaintiffs were to prepare should be satisfactory to the defendant corporation, whereas those prepared were not satisfactory, and therefore were refused. The same defense is stated in another count, with the additional averment that the reason the plans, specifications, and drawings were not satisfactory was the great cost of building in conformity to them. The individual defendants answered by a general denial, and plaintiffs' reply to the answer of the corporation was a general denial.

The written contract between the parties was as follows:

"This agreement made this 1st day of December, in the year Nineteen Hundred and Two, by and between Cann and Switzer Architects, parties of the first part (hereinafter designated the architects) and Charles A. Trotman, President of the Vestry Building Committee and Agents of the Church of the Redeemer, parties of the second part (hereinafter called the owners)

"Witnesseth: That the Architects in consideration of the fulfilment of the agreements herein made with the owners agree with said owners as follows:

"Article 1. The architects under the direction and to the satisfaction of owners shall and will provide all plans, specifications and detail drawings as may be necessary and proper for the erection and completion of a church building to be known as The Church of the Redeemer, located on the corner of Euclid and Washington avenues, St. Louis, Missouri. Said architects are to procure from builders and contractors estimates for the construction of said building and by and with the consent of said owners to let contracts for same and to superintend the work and construction of said building and to issue certificates as vouchers for the payment of contractors or others entitled to such payments in accordance with the terms of their respective contracts.

"Article 2. It is hereby mutually agreed between the parties hereto that the sum to be paid by the owners to the architects for said services shall be paid as follows: two and one-half per cent. for plans, specifications, details and making contracts, one and one-half per cent. for superintending the construction of said building; said commission shall be paid in current funds by the owners to the architects in installments as follows: two and one-half per cent. of the cost of foundation when plans are completed and contract for the foundation is let, the balance of commissions for plans and specifications to be paid when the entire plans and specifications are finished and contract let for the superstructure. The owners shall pay to the architects in installments as follows: for services for superintending one and one-half per cent. of the cost of the building as the work progresses.

"Article 3. The said parties for themselves, their heirs, executors, administrators and assigns do hereby agree to the full performance of the covenants herein contained.

"In Witness Whereof the parties to these presents have hereunto set their hands and seals the day and year first above written.

                             "The Church of the Redeemer
                               "By Charles A. Trotman
                                 "President of the Vestry
                             "W. A. Cann
                             "Henry Switzer
                                   "Architects."
                

The rector of...