Edbrooke v. First National Bank of Alliance

• Decision Date: 10 April 1923
• Docket Number: 22319
• Citation: 193 N.W. 158,110 Neb. 134
• Parties: H. W. J. EDBROOKE, APPELLEE, v. FIRST NATIONAL BANK OF ALLIANCE, APPELLANT
• Court: Nebraska Supreme Court

193 N.W. 158

110 Neb. 134

H. W. J. EDBROOKE, APPELLEE, v. FIRST NATIONAL BANK OF ALLIANCE, APPELLANT

No. 22319

Supreme Court of Nebraska

April 10, 1923

APPEAL from the district court for Box Butte county: WILLIAM H WESTOVER, JUDGE. Affirmed.

AFFIRMED.

Burton & Reddish, for appellant.

Warren & Hodgkin and E. C. Barker, contra.

Heard before MORRISSEY, C. J., ALDRICH and GOOD, JJ., BEGLEY and BUTTON, District Judges.

OPINION

GOOD J.

This action was brought by plaintiff to recover a balance due for services as an architect in preparing plans and specifications for the remodeling of defendant's bank building, pursuant to a written contract between the parties. The defendant admitted the making of the contract, but alleged in its answer that it was understood and agreed between the parties that the cost of the entire work, including the services of the architect, should not exceed $ 30,000, and alleged that, under the plans and specifications furnished, the total cost of remodeling the bank building would exceed $ 60,000, and that it could not and did not use the plans and specifications, and denied any liability on the contract. It further alleged, by way of counterclaim, that it had made a partial payment on the contract, and had ordered and paid for certain material for the building before it was aware that the cost of the remodeling would exceed the sum of $ 30,000, and that the material ordered was of such a character that it could not be used for any other purpose and was an entire loss to the defendant; and asked for judgment for the amount of the partial payments made and the cost of the material paid for. Plaintiff denied that there was any agreement to limit the cost of remodeling to $ 30,000. Trial was had to the court and jury, and the jury found for plaintiff in the total amount claimed by him. Defendant brings the case to this court for review.

1. It is evident from an examination of the record that the principal question, and the one which is determinative of this case, is whether or not there was an agreement between the parties that the cost of remodeling the building should not exceed $ 30,000. On this question the evidence was in conflict. Plaintiff testified that there was no such cost limit, while the defendant and several other witnesses testified that there was such a limitation. There is evidence in the record which tends to show that defendant knew that the cost of remodeling would exceed $ 35,000, and that after receiving this information it made a partial payment to the plaintiff for his services, and that the president of defendant gave other reasons for not proceeding with the work of remodeling the building. The record clearly...