Jacobberger v. School Dist. No. 1, Multnomah County

• Citation: 235 P. 277,114 Or. 575
• Parties: JACOBBERGER v. SCHOOL DIST. NO. 1, MULTNOMAH COUNTY. [*]
• Decision Date: 21 April 1925
• Court: Supreme Court of Oregon

235 P. 277

114 Or. 575

JACOBBERGER v. SCHOOL DIST. NO. 1, MULTNOMAH COUNTY. ^[*]

Supreme Court of Oregon

April 21, 1925

Department 1.

Appeal from Circuit Court, Multnomah County; George Rossman, Judge.

Action by Joseph Jacobberger against School District No. 1 Multnomah County. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with instructions.

This is an action to recover for the breach of a contract of hiring. The material allegations are pleaded as follows:

"III. That on or about April 12, 1911, plaintiff and defendant entered into a contract with each other for the services of plaintiff as architect upon certain terms and conditions embodied in a formal written offer duly and regularly made by defendant in pursuance of a resolution of its board of directors, and accepted by plaintiff, as follows, to wit 'That Joseph Jacobberger be employed as architect to design and superintend the construction of the new Rose City Park school building, eight rooms of which are to be erected this year, and that he be paid a total of 5 per cent. commission for this work on the following terms: Two per cent. on the estimated cost of the entire building when plans for entire building are accepted. Three per cent. as the units of the building are built.'

"IV. That thereupon and thereafter, subsequent to said April 12 1911, plaintiff entered upon the performance of his contract with defendant and made, designed, and prepared plans and specifications for said Rose City Park school building, which were duly accepted by defendant, and said 2 per cent. on the estimated cost of the entire building was paid by defendant to plaintiff in accordance with terms of said contract.

"V. That thereupon and thereafter defendant proceeded with the erection of two units of said school building under the supervision of plaintiff as architect, and defendant paid to plaintiff 3 per cent. on the estimated cost thereof, also in accordance with the terms of said contract.

"VI. That thereupon and thereafter, on or about October 26, 1920 plaintiff, at the request of defendant, made, prepared, and submitted to defendant an estimate of the cost of completing the remaining units of said building, known as the north wing thereof, which estimate of cost was and is the sum of $79,400.

"VII. That thereafter on or about May 6. 1921, defendant, by resolution of its board of directors, duly and regularly made, decided to complete said remaining units on north wing of said building, and to proceed with the architectural work without this plaintiff, and thereupon plaintiff was notified by defendant through its duly appointed school clerk and business manager of the decision of said board which would not allow plaintiff to continue to perform his services as architect under the terms of said contract.

"VIII. That defendant has failed to comply with the said contract by refusing to allow plaintiff, as architect, to take charge of the work of completion of said building, and in violation of the terms thereof has wholly repudiated its obligation to pay plaintiff the remaining sum of 3 per cent. upon the estimated cost of said north wing now to be built by said defendant.

"IX. That plaintiff has done all things required by him to be done under said contract, and has at all times been able, ready and willing to take charge, as architect, of the work of completing said building, but has been prevented from so doing by the acts of the defendant as aforesaid.

"X. That by reason of the breach of contract with plaintiff on the part of defendant, as before stated, this plaintiff has suffered a loss and been damaged in the sum of $2,382, or the balance which would be due as plaintiff's compensation under the terms of said contract, if the same were complied with by defendant.

"Wherefore plaintiff demands judgment against defendant in the sum of...