Curtis v. Bales

• Decision Date: 22 May 1922
• Citation: 241 S.W. 83,211 Mo.App. 219
• Parties: R. A. CURTIS, Respondent, v. FRANK BALES, Appellant
• Court: Kansas Court of Appeals

241 S.W. 83

211 Mo.App. 219

R. A. CURTIS, Respondent, v. FRANK BALES, Appellant

Court of Appeals of Missouri, Kansas City

May 22, 1922

Appeal from the Circuit Court of Jackson County.--Hon. Allen C Southern, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

R. M Sheppard, for respondent.

Clarence L. Hogin and Ball & Ryland for appellant.

OPINION

BLAND, J.

This is an action to recover an architect's fee. There was a verdict and judgment in favor of plaintiff in the sum of $ 3071.46, and defendant has appealed.

The petition alleges--

"Plaintiff states that on or about the day of April, 1919, the defendant employed him to prepare plans and specifications for a garage to be located and built in Kansas City, Missouri; that it was agreed that said plans and specifications should be prepared and approved by the defendant and also approved by the tenant which was to occupy the said premises when they were constructed and ready for occupancy.

Plaintiff states that in accordance with said agreement he prepared plans and specifications and submitted the same to the defendant, and same were approved by the defendant, and same were submitted to the tenants who were to occupy the said premises, and said building erected and occupied and said plans and specifications were approved by said tenants."

The petition further alleges that in accordance with instructions from defendant plaintiff submitted the plans and specifications to various contractors for bids for the construction of the building and received bids therefor and that the lowest bid was for $ 87,756. It alleges that it was agreed between plaintiff and defendant that plaintiff should receive for preparing said plans and specifications "three and one-half (3 1/2%) per cent of the price of the building to be erected under the plans and specifications, which in this case was three thousand seventy-one and 46/100 ($ 3,071.46) dollars;" that defendant refused to pay said sum of money and plaintiff prays judgment for said amount. The answer was a general denial. The court at the instance of plaintiff instructed the jury as follows:

"1. The court instructs the jury that if they find and believe from the evidence that on, or about the day of May, 1919, the defendant employed the plaintiff to prepare plans and specifications for a garage building to be located and built in Kansas City, Missouri; that it was agreed that said plan should be prepared and approved by said defendant and by the J. R. Allen Mortgage Company, and the Kansas City Automobile Club, a proposed tenant for said building when the same was constructed; and it was agreed that if said building was not built that defendant would pay plaintiff 3 1/2 per cent of the lowest bid.

And if you further find and believe from the evidence that plaintiff prepared plans and specifications for said building and the same were submitted to defendant and approved by him, and if you further find that said plans were submitted and approved by the Allen Mortgage Company; and if you further find that the plans and specifications were approved by the Kansas City Automobile Club, or that the defendant abandoned the building of said garage without submitting said plans and specifications to the said Kansas City Automobile Club for their approval. If you so find, then you will find the issues in favor of the plaintiff; and assess his debt and damages at 3 1/2 per cent of the lowest bid with interest at the rate of 6 per cent per annum from the date of filing this suit."

"2. The court instructs the jury that if they find and believe from the evidence that the defendant refused to examine the plans to determine whether or not they were satisfactory to him, then the fact that they were not approved by the defendant is not any defense in this case."

The facts show that on May 26, 1919, defendant submitted by letter a proposition to the chairman of the building committee of the Kansas City Automobile Club, which was seeking a down town garage building for its members. Defendant proposed that he would build a four-story fire-proof garage on premise owned by himself and his mother located at the southeast corner of Grand Avenue and Admiral Boulevard in Kansas City, Missouri, and lease the same to the club at a stipulated rental; that it was understood that the building should not cost in excess of $ 90,000, and that defendant should have time to have plans and specifications drawn and bids on the building secured and that "if, after the securing of these bids, I find that the cost of the building is in excess of $ 90,000 none of the parties concerned are under any obligations to go further with the transaction." This proposal was accepted by the automobile club and the building committee was instructed to work out the details with defendant.

Sometime prior to the writing of the said letter defendant discussed with plaintiff, an architect in Kansas City, Mo., the subject of plaintiff's preparing plans and specifications for the garage building on the property mentioned. At that time plaintiff told defendant that he "would charge the customary fees, for complete service to be five per cent (5%) and if he (defendant) should abandon the work after the plans and specifications were prepared that the fee would be three and one-half (3 1/2%) per cent . . . if he abandoned it after they (the bids) were received, three and one-half per cent of the lowest bid . . . for the total cost." Defendant agreed to this proposition and instructed plaintiff to prepare plans for the building. Plaintiff testified that the plans and specifications were to be approved by the defendant, the Kansas City Automobile Club, as the proposed tenant, and the J. R. Allen Mortgage Company, the representative of defendant.

After the plans were made and approved and bids were received defendant decided that he wanted a more pretentious and better building, one that could be used for other purposes after its use as a garage was at an end; also, he was not satisfied owing to the fact that the bids were not taken upon the building as a whole but that the contract was to be taken for the construction of the parts of the building while defendant desired the contract to be a general one for the building as a whole. Thereupon plaintiff prepared other plans and specifications to satisfy defendant which, after their preparation, were accepted by defendant and the J. R. Allen Mortgage Company. Defendant thereupon instructed plaintiff to receive bids for the building to be constructed in accordance with the second set of plans and specifications.

A building committee of three members had been appointed by the Kansas City Automobile Club to have full authority to represent the club "on the new garage project." The members of this committee conferred with plaintiff from time to time during the drawing up of the first plans and specifications and agreed to those plans, but it is apparent from the testimony that before they had an opportunity to pass upon the second plans and specifications the project was abandoned by the defendant. Plaintiff contends that the automobile club passed upon the second plans and specifications. We do not think that the record bears this out. The record does show that those plans and specifications were drawn to meet the previously expressed ideas of the members of the building committee of the club and upon their completion defendant instructed plaintiff to deliver them to the president of the club who was not a member of the building committee. They were delivered to the president who instructed plaintiff to turn them over to an architect for examination. Plaintiff testified that the architect kept the plans for sometime when he told plaintiff that he had examined them and that they were satisfactory.

In accordance with defendant's directions plaintiff asked for bids for the building, which was to be constructed under the second plans and specifications, and Lonsdale Brothers were the lowest bidders at the price of $ 87,756. After defendant saw the second plans and specifications and approved the same and instructed plaintiff to ask for bids he left for his farm near Lees Summit, Missouri, before the bids were asked. After the bids were received plaintiff drew up a contract for the erection of the building and had it signed by Lonsdale Brothers and turned it over to Mr. Leonard of the J. R. Allen Mortgage Company, which represented the defendant, and mailed a copy of the blue prints and specifications and the bids to defendant. Defendant refused to receive the blue...