Doup v. Almand

• Court: Arkansas Supreme Court
• Writing for the Court: Minor W. Millwee, Justice.
• Citation: Doup v. Almand, 207 S.W.2d 601, 212 Ark. 687 (Ark. 1948)
• Decision Date: 19 January 1948
• Docket Number: 4-8369
• Parties: Doup v. Almand

207 S.W.2d 601

212 Ark. 687

Doup v. Almand

No. 4-8369

Supreme Court of Arkansas

January 19, 1948

Appeal from Jefferson Circuit Court; T. G. Parham, Judge.

Affirmed.

Reinberger & Eilbott, for appellant.

Rowell Rowell & Dickey, for appellee.

OPINION

Minor W. Millwee, Justice.

This is an action by appellee, John P. Almand, to recover compensation for his services as an architect in the preparation of plans and specifications for re-construction of an ice plant for appellant, H. C. Doup, in the City of North Little Rock, Arkansas. The cause was tried before the court without a jury upon the testimony of the parties and one other witness. This appeal is from a judgment in favor of appellee in the sum of $ 720.

It is undisputed that the parties entered into an oral agreement whereby appellant employed appellee to draw plans and specifications for rebuilding appellant's plant which had burned. It is also undisputed that an architect's fee of 6% of the cost of the building was to be paid under the agreement, provided appellee also supervised construction of the building.

The testimony of appellee is to the following effect: In July or August, 1945, appellant approached appellee at his home in Little Rock where he maintained his office and employed him to draw plans and specifications for the plant for a fee of 6% of the cost of the completed structure. Appellant furnished appellee with rough drawings of the plan of construction contemplated. The parties held several conferences over a period of three or four weeks in which a complete understanding was reached regarding the kind of materials to be used in the building and other details of construction. Appellee then informed appellant that the plans would be completed on a certain date and appellant agreed to return at that time. Appellant failed to appear on the appointed date and appellee called him at his home in Pine Bluff several days later. Appellant agreed to come to Little Rock the following Monday or Tuesday. Appellant again failed to appear on the dates designated, but, in response to another telephone call from appellee, appeared about a week later.

The plans and specifications were then ready and lying on the table in the room where the parties conferred, but appellant showed no interest in the plans and stated for the first time that he was not going to invest more than $ 10,000 in the building. Appellee had previously informed appellant that the brick alone would cost approximately that amount and appellant had made no objection to the cost of the different materials to be used in the construction of the building. Appellee then informed appellant that he was due part of his fee and would like to talk to him about that, but appellant replied that he was not paying anything to anybody that day and walked away. Appellant did not ask to see the plans and specifications and appellee did not offer them after appellant indicated that he had no interest in them and refused to consider payment of any part of the fee then due.

Appellee further testified that construction of the building, based on the plans and specifications he had drawn, would cost $ 20,000; and that under the practice recommended by the American Institute of Architects a fee of 75% of 6% of the cost of construction is due on completion of the plans and specifications and the final 25% is due where the architect supervises construction. Appellee rendered a bill to appellant for $ 900 based on this method of calculation of his fee and payment was refused. The plans and specifications were introduced in evidence.

Appellant testified that appellee agreed to draw the plans and specifications for 3% of the cost of construction and an additional 3% provided he also supervised the erection of the building. He also testified that he did not employ appellee to determine the cost of the building and did not object to the proposed cost thereof; that appellee advised him that the building would cost $ 14,000 or $ 15,000; he did not remember saying he was not going to invest more than $ 10,000 in the building.

Appellant further testified that appellee seemed to be disinterested in getting out the plans and delayed making them in order that he might do other work; and that he did not draw the plans according to appellant's instructions. While appellant testified that appellee did not deliver or offer to deliver the plans, he admitted that he did not ask for them. He also testified that he did not ask appellee to stop work on the plans. He later employed another architect to draw the plans. At their last conference appellee demanded a fee of $ 900 and that one-half of it be paid at that time, which appellant refused to do.

Mitchell Seligman, an architect, testified that in arriving at a fee for completion of plans and specifications the architect estimates the cost of the building and bases his fee thereon. The customary charge is 6% of the cost of construction and under the practice of witness 3.6% is charged for plans and specifications and 2.4% for supervising the work. While the American Institute of Architects recommends the practice followed by appellee, each architect is permitted to adopt his own procedure in fixing fees.

It is evident from the testimony just recited that the question whether appellee performed the services required of him under the agreement and drew the plans and specifications according to the instructions of appellant is sharply disputed. In 6 C. J. S., Architects, p. 308, the textwriter states: "Where the architect prepared plans and specifications for a building pursuant to an unconditional order or direction of the owner, he is entitled to recover for his services whether or not the plans are used if they substantially comply with the employer's instructions. So his right to compensation will not be defeated by the fact that the building for which the plans are prepared was never constructed or by the fact that the time is not such as to render it expedient to build." The trial court sitting as a jury necessarily found under conflicting testimony that appellee substantially complied with the instructions of appellant in drawing the plans and specifications. There is substantial evidence to support this finding.

Appellant states his principal contention for reversal of the judgment as follows: "It is the contention of the appellant that ...