Kortz v. Kimberlin
| Decision Date | 24 April 1914 |
| Citation | 158 Ky. 566,165 S.W. 654 |
| Parties | KORTZ et al. v. KIMBERLIN. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Daviess County.
Action by C. W. Kimberlin against Rose Kortz and another. Judgment for plaintiff, and defendants appeal. Affirmed.
J. J Sweeney and W. T. Ellis, both of Owensboro, for appellants.
Ben D Ringo, of Owensboro, for appellee.
Plaintiff C. W. Kimberlin, an architect, brought this action against defendants, Rose Kortz and Kate Kortz, to recover a balance due for his services in drawing the plans and superintending the construction of their residence near Owensboro, in Daviess county. He alleged that he was entitled to receive 5 per cent of the cost price of the house, which was $10,724.73, or the sum of $536.23. Of this amount he had been paid $300. He asked judgment for the balance of $236.23. After denying the material allegations of the petition defendants, by counterclaim, set up several items of damage, which they alleged resulted because of defective plans, or because of the negligent manner in which the plaintiff superintended the construction of the building. The items of damage relied on aggregated $1,046.70. The case was submitted to a jury, which returned a verdict in favor of plaintiff for $161.10. Plaintiff was given judgment for this amount, and defendants' counterclaim dismissed. Defendants appeal.
The items of damage set up in the counterclaim are as follows: (1) Two hundred dollars for permitting contractor to construct the walls of six-inch tile, instead of eightinch tile, as required by the plans and specifications. (2) Because of defective plans, and the failure of plaintiff to get a true level of the lot: 1 back porch, $10.50; additional step, $10; 2 concrete beams, $18; 1 10-foot wall, $11.50; 1 6-foot wall, $7; 1 wall 9x3x13, $8; 1 wall 6x3x13, $7. (3) Nineteen dollars and seventy cents for changes made after work was completed, growing out of refusal of plaintiff to make suitable changes in his plans before work was done. (4) Defective roofing, $50. (5) $80 for extra work on tiling floor, occasioned by the failure of plaintiff to give the contractor correct copy of plans. (6) Seventy-five dollars for services of another architect, who was employed to provide plans to remedy the defective condition of the roof of the porches. (7) Defective plans, causing rains and snows to flow on the north side and freeze in front of the front door, $50. (8) Defective stucco work on outside of walls, $500.
The evidence for plaintiff was to the effect that several changes were made in the plans and specifications by the direction of or with the consent of defendants; that six-inch tile for the walls was substituted in the place of eight-inch tile on the suggestion of the party furnishing the tile, and this was agreed to. After the house was located, defendants suggested a change in the location, and this, in connection with the fact that they wanted a cellar under the porch, necessitated the additional items embraced under heading No. 2. Under the original plans the roof was to be of tile, but defendants substituted asbestos shingles. The leak was due to this fact. According to the evidence for defendants, no change in the location of the house was made after the levels were given. The plans themselves provided for a house on a level. The items under heading No. 2 were made necessary because of defective plans and the failure to give true levels. Defendants did not consent to any change in the tile of which the walls were to be constructed. The difference in the cost of the tile is about $25 or $30. In the construction of the porch floor the original plans were proper. In the copy of the plans given to the contractor certain items...
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