LeGg v. Gerardi

• Decision Date: 04 May 1886
• Citation: 22 Mo.App. 149
• Parties: JEROME B. LEGG, Respondent, v. JOSEPH GERARDI, Appellant.
• Court: Missouri Court of Appeals

22 Mo.App. 149

JEROME B. LEGG, Respondent,

v.JOSEPH GERARDI, Appellant.

St. Louis Court of Appeals, Missouri.

May 4, 1886.

APPEAL from the St. Louis Circuit Court, SHEPARD BARCLAY, Judge.

Affirmed.

DYER, LEE & ELLIS, for the appellant: The court below committed error in admitting testimony of witnesses as to the value of the plaintiff's services, and in instructions upon the measure of damages, because the cause of action is based upon a specific, definite contract in regard to the price to be paid for the services rendered. Crump v. Rebstock, 20 Mo. App. 37; Fox v. Pullman Car Co., 16 Mo. App. 122; Mansur v. Botts, 80 Mo. 651. The court committed error in refusing the instruction s asked by the defendant, to the effect that unless the plaintiff had proved the contract as stated in his petition, he was not entitled to recover. Dougherty v. Mathews, 35 Mo. 528; Faulkner v. Faulkner, 73 Mo. 327; Waldhier v. Railroad, 71 Mo. 514.

TAYLOR & POLLARD, for the respondent: The action was on a quantum meruit and the proof of value was proper. Ludlow v. Dole, 62 N. Y. 617; McMahon v.Bridell, 3 Mo. App. 572; Floerke v. Distilling Co., 20 Mo. App. 76.

THOMPSON, J., delivered the opinion of the court.

This is an action to recover the reasonable value of certain services alleged to have been rendered by the plaintiff at the special instance and request of the defendant. The petition is as follows:

“Plaintiff for his cause of action alleges that he is, and for years has been, an architect in said city of St. Louis, and the defendant is, and for years has been, the proprietor of the Planters' House, a well known hotel on Fourth, Chestnut, and Pine streets in said city. That on or about the ____ day of April, 1880, the defendant employed plaintiff in his said professional capacity to make a survey and platting of the building then known as the Planters' House aforesaid, and to make plans, specifications, and estimates for remodeling said hotel building, and to put the matter into a tangible shape, for the defendant to place before the board of directors of the company owning said hotel, to enable him (said defendant) to induce said board to remodel said building for his (defendant's) benefit, for which services said defendant agreed to pay plaintiff five per cent. of the actual cost of remodeling and improving said Planters' House, on condition such improvements were made, and to pay the same as soon as said hotel building should be remodeled and said improvements should be made.

That, in pursuance of said employment, plaintiff made and delivered to defendant such surveys, plans, specifications, and estimates, on or about the ____ day of ____, 1880, in all respects in compliance with said employment, and that afterwards, and before the beginning of this suit, said board of directors did remodel and improve said hotel at a cost of fifty-two thousand, four hundred and thirty-five dollars. That five per cent. of said sum is two thousand, six hundred and twenty-one and 75/100 dollars ($2,621.75).

Plaintiff further avers that the value of the services rendered by him as above stated in compliance with said employment, was well and truly worth said sum of two thousand six hundred and twenty-one and 75/100 dollars ($2,621.75), for which, with interest and costs, he asks judgment.”

The answer is a general denial.

The testimony adduced at the trial may be divided into two classes: (1) The testimony of three witnesses, the plaintiff, Alexander Kechnie, and the defendant, as to what the contract, if any, really was. (2) The testimony of experts, given against the objection of the defendant, as to what the reasonable value of the services which the plaintiff rendered was.

The plaintiff gave his version of the alleged contract in the following language:

“Gerardi said that the Planters' House was too small for his business; that it did not contain enough rooms; that the office was inconvenient, and that the dining-room was not such as he wanted, and that he wanted a ladies' and gentlemen's restaurant; he went on and stated a number of things that were required in the building, and stated he wanted to have the improvements made. He did not know whether or not it was feasible to make those improvements; he said he would like to have a couple of stories added on the building and didn't know whether the walls would bear a couple of stories or not. He also said that he wanted an office on the ground floor, and didn't know whether it was feasible or not to do that; said he would like to have me go through the building with him and make an examination of it. Mr. Kechnie and myself went through the building with Gerardi from top to bottom and spent probably a couple of hours, it may be more, and as we passed through the building Gerardi explained to me what alterations and changes he would like and what he wished the building to contain, as altered, and after we had finished the survey or the examination of the building, we went out into an open court, now occupied by the rotunda of the Planters' House, and stood at the corner of the little low boiler house that projected out into that open court, and commenced talking, and Gerardi wanted to know what I would charge him for making the necessary plans and specifications and giving estimates for these proposed improvements. He said that he wanted the owners of the building to make the improvements for him, and if he could get such improvements made as he wanted, he would be willing to pay ten thousand dollars more a year rent for the property, and he said that, in order to get the matter in a tangible shape, so as to place it before the owners of the building, he wanted a design so as to have an idea of what the probable cost would be; I said to Mr. Gerardi that the contemplated improvements would cost, perhaps, at least, forty or fifty thousand dollars, and that the usual fee for architects for such work would be two and one-half per cent. on the cost for the plans and specifications, and the usual custom was to charge two and one-half per cent. on the cost for superintending, making five per cent. in all; that if I made these plans and specifications for these improvements, that it would, perhaps, cost him a good deal more than he would like to pay, unless he knew he was going to have the work done. I said to Mr. Gerardi that if he was willing to pay the amount that he had named extra for rent for the improvements that he had suggested, I was willing to speculate a little with him in that matter, and that I would make a survey and the necessary drawings and give him estimates on it, and if he succeeded in having the owners of the property make the desired improvements for him, I would charge him five per cent. of their cost for my services; but if he failed to have them make the improvements for him, then I would not charge him anything for my services whatever in the matter. I told him that it would nearly double pay me for what my work would actually be worth, but that I can afford to take my chances on it for the sake of getting good pay, and that he would be out nothing unless he succeeded in having the improvements made. He said to me then, ‘Mr. Legg, I will be only too glad to pay you that amount of money, if the improvements are made,’ and I then said, ‘Gerardi, I will proceed at once then and make the plans and give you the estimates on the building.’ So I went to my office, and the next day, I took an assistant with me down to the Planters' House, and we commenced making a survey of the old building and we spent probably two or three days, I think it may be, in taking the measurements. We took the measurements all through the building so designed to be changed, on every floor, from the basement to the top.” The witness then proceeds to state that he made the survey, and afterwards made a sketch showing a design for the proposed improvements, and that he afterwards made a pencil drawing of the changes that were suggested, and after some alterations growing out of suggestions made by the defendant, he finished up a pencil drawing and made a synopsis of estimates for the proposed cost of the alterations in the building.

Mr. Kechnie introduced the plaintiff to Mr. Gerardi, and was present at the time of the conversation above detailed by the plaintiff. After stating that the three went through the house together and made a preliminary examination of the alterations proposed, he proceeded as follows:

“After we got through the whole business, we got down into the rotunda part that is there now; there was no rotunda there at that time, but it was adjoining a boiler house, an engine house, I think it was at the time, and the three of us were there, and Mr. Legg told Mr. Gerardi that his charge would be for making these plans and specifications two and one-half per cent., and that if he superintended the job and made details, it would be two and one-half per cent. more, making in all five per cent., and Gerardi said that he would be only too glad to pay that amount if the work was done.

That last conversation that we had on the day that we went through the whole place, when we were about parting, was simply this: I think I have repeated this already, but I will state again, that Mr. Legg turned to Gerardi and said, ‘My charge for these specifications will be two and one-half per cent.; if I superintend the job and make the details, it will be two and one-half per cent. more, making in all five per cent.’; and Gerardi said, ‘I will be only too glad to pay that if the work is done.”DDDDD'

The defendant, in his testimony, gave a very different version of this conversation, as follows:

“I told Legg, then, as near as I can remember, that when I leased the Planters' House, it was the understanding that certain alterations and improvements were to be made on that building; that was the understanding before I leased it, and I stated to him that the owners were now ready to take bids and go on with the...