Rosenthal v. Gauthier

• Decision Date: 14 December 1953
• Docket Number: No. 39786,39786
• Citation: 224 La. 341,69 So.2d 367
• Court: Louisiana Supreme Court
• Parties: ROSENTHAL v. GAUTHIER.

Page 367

69 So.2d 367

224 La. 341

ROSENTHAL v. GAUTHIER.

No. 39786.

Supreme Court of Louisiana.

Dec. 14, 1953.

William J. Guste and John Pat Little, New Orleans, for plaintiff-appellant.

Lazarus, Weil & Lazarus, New Orleans, for defendant-appellee.

MOISE, Justice.

Plaintiff, Sol Rosenthal, appeals from a judgment rejecting his demand for $6,711.06, alleged value of professional architectural services rendered to the defendant for the drawing of plans and specifications for a hospital in Metairie, Louisiana.

The district judge found that there was a cost limitation fixed by the defendant for the building, which was exceeded by the plaintiff, and permitted parol evidence to prove that fact. He decided in favor of the defendant and dismissed plaintiff's suit.

On June 21, 1945, plaintiff and defendant entered into the contract herein involved, which is the standard form of agreement issued by the American Institute of Architects. The defendant had no part in the preparation of the contract; it was handed to him by the plaintiff who was a member of the organization. The contract provided for the drawing of plans for a one story masonry, fire resistant, flat roof clinic and hospital. The size of the hospital, the number of rooms for patients, the operating rooms and fixtures, the cost of the structure, etc. must all be discussed by the owner and the architect in order to prepare plans and specifications for a hospital.

Of course, we realize that when a district judge hears the evidence during a trial there must be some things that are self evident, and there are some which are proven by the senses; and there are other subjects which address themselves to no particular standard of truth but to human experience or human nature. We look at the influences which have surrounded our fellow man, and, then, we sound his heart by the plummets which we apply to our own.

In this instance, the owner and the architect met together for discussing the construction of the hospital building. The first major consideration which would address itself to the ordinary mind would be the cost of the structure, and it must be immediately determined. It is a self determining question because a building must be designed in accordance with the ability of the owner to pay. The architect participates in this discussion in order that he might design a building within the means of his client. Plaintiff's bill to defendant reads as follows:

"For professional services rendered:

                "Preliminary drawings, studies, working
                   drawings and specifications for one-story
                   Masonry Hospital, Metairie, La
                   in accordance with contract dated June
                   21, 1946
                "Estimated Cost, $123,490.00 @ 6%......       $7,409.40
                "Engineers' Services
                 Electrical work....$9,310.00 @ 4%               372.40
                 Mechanical work......$29,157 @ 4%             1,166.28
                                                              ----------
                                                              $8,948.08
                "Payable under contract 75% of $8,918.08...   $6,711.06"
                

The plaintiff brought suit upon the contract, described above, and alleged that he furnished complete plans and specifications in compliance with the contract which were delivered to the contractor designated by the defendant. He averred amicable demand without avail and prayed for a judgment in the sum of $6,711.06 and recognition of his first lien and privilege on the property of the defendant.

The defendant answered plaintiff's petition and averred that a part of this contract was a verbal agreement and understanding as to a cost limitation of the building--this limitation beginning at $60,000 and being progressively raised after numerous discussions to $100,000, including architects and contractor's fees--which had not been fulfilled by the plaintiff. Under the strenuous objections of plaintiff's counsel, parol evidence was admitted.

Our learned brother below found that there was a definite understanding between plaintiff and defendant herein as to the cost limitation of the hospital, and that the plans and specifications submitted by plaintiff were for a building that far exceeded the proposed limit of such construction. In reasons for judgment, the court stated:

'The Court is of the firm opinion, and relying upon the decisions of the appellate courts, and more particularly the rule of law enunciated in MacDonnell v. Dreyfous, 144 La. 891, 81 So. 383, and Andry & Feitel v. Ewing, Jr., 15 La.App. 272, 130 So. 570, that where an architect furnished plans and specifications for a building in excess of the originally contemplated cost that the defendant would not be liable for the architect's fee, and the Court believes that there was definite understanding as to the consideration by and between defendant and plaintiff herein as to the cost limit of the construction of the hospital, and that plans were submitted by the plaintiff herein for a building to cost greatly in excess of the original proposed cost of the building, and for that reason that the defendant herein is not liable for the architect's fees. * * *'

The polar star for consideration is a factual issue. Was there a cost limitation on the proposed structure? Once this question is resolved, the contradictions, the inconsistancies, the waivering in the testimony, etc. will no longer tax the judicial mind.

The district judge saw and heard the witnesses. So many things happen in the court room that are not susceptible of being taken down by the court stenographer for a record for this Court, but all come within the eye of the trial judge. Therefore, he is in a far better position than we, who have only the bare and barren testimony before us, to...