Hight v. Klingensmith

• Decision Date: 29 April 1905
• Citation: 87 S.W. 138,75 Ark. 218
• Parties: HIGHT v. KLINGENSMITH
• Court: Arkansas Supreme Court

87 S.W. 138

75 Ark. 218

HIGHT v. KLINGENSMITH

Supreme Court of Arkansas

April 29, 1905

[Copyrighted Material Omitted]

Appeal from Washington Circuit Court, JOHN N. TILLMAN, Judge.

Affirmed.

STATEMENT BY THE COURT.

The appellee filed his complaint against appellant, in the Washington Circuit Court for the April term, 1903, alleging that "said defendant in the fall of 1902 employed plaintiff as an architect to prepare and furnish for him sketches, plans, and specifications for a certain residence which defendant proposed to erect in Fayetteville Ark.," and that "in pursuance of such employment plaintiff first drew a general outline or plan," and "submitted the same to defendant," and advised defendant of the details thereof and "of the probable cost of same," and that "being requested by the defendant to do so, [he] made and furnished complete plans," etc. Also that he "made and furnished to him plans, details and specifications for another six-room dwelling house," and delivered said plans and specifications to defendant. That defendant stated at the time that he expected to construct said building according to the plans so furnished by plaintiff, but plaintiff alleges that defendant has "since abandoned such purposes." That, by the terms of the contract, plaintiff was to receive as compensation for his services "three per cent. of the cost of constructing said houses." That the residence first above named could be constructed for the sum of $ 6,350; and the other could be constructed for the sum of $ 2,000; making a total of $ 8,350. That plaintiff has received $ 100 in payment, and the balance of $ 150.50 is due and unpaid.

Appellant filed an answer, admitting the employment of plaintiff to draw for him the plans and specifications of the two buildings, and that he advised defendant of the details thereof and the cost of same; alleges that plaintiff claimed to be "a skillful architect," and to be "competent" to make "a correct estimate" of the cost of the material and construction, according to the plans and specifications; that defendant "relied entirely upon the representations of said plaintiff," all of which was well known to plaintiff at the time; that plaintiff represented to defendant that the cost of the College Avenue residence would not exceed $ 4,100 when completed; and that, relying upon plaintiff's "skill and superior knowledge in such matters, and not upon his own judgment," he agreed to let the contract for said building. The plaintiff also drew plans and specifications for another building, a six-room dwelling house, "which defendant desired to erect and to construct in part from the material of a brick building then standing on defendant's premises," and which building defendant then contemplated tearing down and moving to the rear of said lot. The plaintiff represented that the cost of said work would not exceed $ 800, and that defendant, "relying upon the superior skill and judgment of said plaintiff in the premises," and believing the representations true agreed to let the contract at the price aforesaid; that defendant advised plaintiff that he relied on his estimate of the cost of said building, and that plaintiff's "positive statements were that the cost would not exceed $ 4,100 for the residence, and $ 800 for the six-room cottage;" that defendant "has endeavored in good faith to let the contract," but "has been wholly unable to do so" within the limit of cost guarantied by plaintiff. Defendant also states that he never contemplated the erection of the buildings at the cost of $ 6,350 for the residence and $ 2,000 for the cottage, and that the only agreement made by him to pay the plaintiff for the plans and specifications was based upon the estimated cost of said buildings furnished him by the plaintiff; that he has paid plaintiff $ 100, "which was the full amount demanded by him," and that nothing more was to be paid until the houses were completed. That it is not true that defendant has "abandoned his purposes of having said buildings constructed according to said plans and specifications," but that he is willing to have same constructed within the cost limit fixed by plaintiff.

The testimony on behalf of appellee tended to show that he was employed as an architect by the appellant to draw up the plans and specifications for two dwelling houses in the city of Fayetteville. He was also to superintend the erection of the buildings. He was to receive as compensation for his services three per cent. of the cost of the buildings, and appellant was to pay appellee's actual expenses while he was superintending the work of construction. Appellant told appellee that he did not want to expend over about $ 4,000 for the residence on College and asked the wife and daughter of appellant about the size of the rooms, what would suit, etc., and then drew up and submitted a rough sketch. His testimony proceeds as follows:

"I went to the house once or twice, and consulted them, and they approved of everything that I was doing." "I said nothing about the price. When I had the plans half done, I took them up to Dr. Hight's house, and showed them to them." "I realized at the time that they would cost more than Dr. Hight expressly desired to expend." "I said, 'I am here to tell you that, in place of costing $ 4,000, the amount that Dr. Hight desired it to cost, it will cost $ 8,000.' This was said to Dr. Hight and wife and daughter. I said I was willing to make a new set of plans, and not charge one cent for these. Mrs. Hight said, 'It is just what I want.' Dr. Hight said nothing. He finally said, '$ 8,000 is a large sum, and I do not like to expend that amount of money.' He said, 'You finish the plans, and I will see.' Dr. Hight told me that he wanted to move his present house to the lower end of the lot, building the new house on the site of the old one. I told him that it would cost about $ 800 to move the old house and erect it on the lower end of the lot, using the same doors, windows, joists, etc. I did not make a contract for moving it. I did furnish defendant with one complete set of plans and specifications for that house.

"After waiting quite a while, I asked Dr. Hight for the money, and he said, 'How much?' I said, '$ 100.' He said he thought it was a good deal, and I told him that I claimed the right to collect 2-3 or 2-5 of the whole bill, at the time the plans were delivered. The doctor gave me a check for $ 100. I claim a balance due of $ 150.50.

"When Dr. Hight paid me the $ 100, I did not tell him that there would be any more due. The plans for the house on College Avenue were drawn to cost $ 8,000, and I furnished the plans with the distinct understanding that it would cost $ 8,000. I could make plans that would cost $ 4,000. I did not explain to him about any plans that would cost $ 6,350. Mrs. Hight said that it was just what she wanted. I said that this house would cost $ 8,000, and I think they understood it. Dr. Hight told me that he would not expend over $ 4,000. I went to the house with the plans, and told them that it would cost $ 8,000. They said, 'Go ahead and finish the plans.' It was part of my contract, on the three per cent. basis, to come up from time to time to superintend the construction of the buildings, and the money, as extra compensation, that I was to receive was my actual expenses, to be paid by Dr. Hight."

The testimony on behalf of appellant tended to show that he employed appellee, and was to pay him three per cent. of the cost of the buildings for plans, specifications and superintendence of construction work, but that he expressly limited the cost of the buildings to $ 5,000. He says: "I distinctly told Klingensmith time and again that I would not pay over $ 5,000 for the two buildings. I did not pay any attention to the plans and specifications. The plans were for the family; my part was to pay for them. My part was to keep within the limit of $ 5,000. Plans and specifications that were to cost $ 8,350, $ 8,000, or even $ 6,350, for the two houses were and are worthless to me, because I was not, and am not, willing to pay over $ 5,000; but if Mr. Klingensmith can build them at that, I will agree to let the contract. I never at any time agreed to pay Klingensmith more than three per cent. on both buildings, and the price on both buildings not to exceed $ 5,000; and he was to superintend the construction of the houses, except that I was to pay his actual expenses when coming up on these trips.

"I wanted a house that would please my family. My family talked over the general outline of the house they wanted. When Klingensmith was showing the plans to my wife and daughter, I did not look over them. I listened to their talk, and in that way got an idea. Yes, I did complain about the price that Klingensmith put upon the buildings, but this was after the plans were all in. I think that my wife and daughter were satisfied with the plans." He was asked: Q. "If they agreed upon these plans with Klingensmith, did you tell him to go on and draw them?" A. "I said to stay inside of $ 5,000. I told him this at the time the plans were partially completed. I never did accept the plans." Q. "Did you ever raise any objections to the plans?" A. "I raised an objection to the price. I submitted these plans for bids but never could get any offers inside of the amount of $ 5,000."

He further said: "Klingensmith has never asked nor demanded that these plans and specifications be returned to him. I think that Byrnes has them. They are absolutely worthless to me, because I could not get the houses built within the limit fixed by me. I had been figuring with Byrnes, and had paid the $ 100 at the time that I had Byrnes's bid on the College Avenue house, of $ 5,600; but I knew I would...