Kurfiss v. Martin

• Citation: 110 S.W. 32,130 Mo.App. 469
• Parties: SELBY H. KURFISS, Respondent, v. DAVID E. MARTIN, Appellant
• Decision Date: 04 May 1908
• Court: Kansas Court of Appeals

110 S.W. 32

130 Mo.App. 469

SELBY H. KURFISS, Respondent, v. DAVID E. MARTIN, Appellant

Court of Appeals of Missouri, Kansas City

May 4, 1908

Appeal from Jackson Circuit Court.--Hon. James E. Goodrich, Judge.

REVERSED AND REMANDED.

Reversed and remanded.

Reed Yates, Mastin & Harvey, for appellant, submitted argument.

Wm. H Clawson for respondent.

(1) This instruction was very properly refused because it singled out one particular fact in the case and gave prominence to it and ignored and obscured all other facts in the case, and instructed the jury that if such fact were established they should render their verdict for defendant, regardless of all other facts. State v. Holmes, 17 Mo. 379; Chappell v. Allen, 38 Mo. 213; Rose v Spies, 44 Mo. 91; Meyer v. Railroad, 45 Mo. 137; Koenig v. Life Assn., 3 Mo.App. 596; Kendig v. Railroad, 79 Mo. 207; Shaffner v. Leahy, 21 Mo.App. 110; Judd v. Railroad, 23 Mo.App. 56; McClure v. Ritchney, 30 Mo.App. 445; Ackley v. Railroad, 30 Mo.App. 657; Copp v. Hardy, 32 Mo.App. 588; Hackmon v. McGuire, 20 Mo.App. 286; Noyes v. Cunningham, 51 Mo.App. 194; Railroad v. Stock Yards Co., 120 Mo. 541; Chaney v. Insurance Co., 62 Mo.App. 45; Bowlin v. Creel, 63 Mo.App. 229; State v. Williams, 136 Mo. 293; Bank v. Metcalf, 29 Mo.App. 384; State v. McKenzie, 102 Mo. 620.

OPINION

BROADDUS, P. J.

--The plaintiff sues to recover for the value of his services as architect. On or about June 1, 1904, the plaintiff and defendant met according to a previous arrangement at the home of the latter. It was the purpose of defendant to erect a building on a certain lot which was shown plaintiff. Defendant, according to plaintiff's statement, asked him what kind of a building would make the best investment. That he suggested a six apartment, three-story building; that defendant then asked him what that would cost, and that he told him in the neighborhood of $ 10,000, that after describing what kind of building he contemplated, defendant asked him what his services would be worth, and he told him four per cent; that he then prepared preliminary plans for the building in order to show what it was to be; that in the meantime he had made such investigation as satisfied him that the cost of the structure would exceed $ 10,000 but if properly built the cost would be $ 13,500; that he then reported to defendant the information he had obtained as to the cost of the building; that defendant then suggested that they should see a Mr. Lonsdale, a contractor; that they saw the latter who estimated the cost of the contemplated building also at $ 13,500, but that he could not make an accurate estimate upon the drawings as furnished, whereupon defendant said: "I guess, Mr. Kurfiss, the only thing we can do is to fit up complete drawings and specifications so we can obtain an accurate estimate;" that after this defendant suggested some alterations of the plans which would increase the cost of the building to the extent of $ 1,250, that defendant took the plans to another firm of contractors who estimated the cost of construction at $ 12,900; and that he said he would not put up one that would cost more than $ 10,000. After this the parties consulted in reference to a two-story flat that would not cost over $ 8,000, and that plaintiff had about completed the plans for the latter, when the parties disagreed. The plaintiff testified as to the value of his services.

The defendant in his statement of what occurred does not greatly differ with that of plaintiff in most particulars. He said in substance after detailing what was said of a building of the kind he wanted, that it was represented by plaintiff that its cost would not exceed $ 10,000; that he then said to plaintiff, viz.: "I told him then, under these conditions, that if he thought a flat could be built there that he might make us some plans and give us an idea of what they would look like, and he said he would do that. This was the first time I talked on the subject." He further testified that after the original contract had been abandoned, he and plaintiff had some negotiations about erecting a two story flat and that plaintiff furnished plans and specifications for a building of that character, but that as the estimate for their costs was $ 10,000 he was not willing to pay that much to get them, but was willing to build at a cost of $ 8,000, but that plaintiff would not change the plans so as to bring the cost of construction to the sum stated. And defendant further testified as follows: "And we had an understanding when we started to figure on that for the plans that, he was not to consider the first plans that he had drawn, and if we could take the second plans, he would build the house, superintend the building of the house and furnish the plans, for $ 125." Defendant offered to prove that he was acting not for himself, but in the capacity of agent for his wife who was the owner of the lots and that he so notified plaintiff at the beginning of the transaction, but this evidence was excluded by the court on the grounds, we suppose, judging by what was said at the time, that the evidence was not properly tendered. As the...