Sherwood v. Wise

• Decision Date: 07 July 1924
• Docket Number: 18515.
• Parties: SHERWOOD v. WISE et al.
• Court: Washington Supreme Court

227 P. 323

130 Wash. 331

SHERWOOD v. WISE et al.

No. 18515.

Supreme Court of Washington

July 7, 1924

Department 1.

Appeal from Superior Court, Pierce County; Askren, Judge.

Action by Edward Sherwood, assignee of Fred F. Travis, against Thomas C. Wise and others. From the judgment rendered plaintiff appeals. Reversed with instructions.

Ralph Woods, of Tacoma, for appellant.

Bates &amp Peterson, of Tacoma, for respondents.

HOLCOMB, J.

This appeal is from a judgment of the trial court in an action to foreclose a mechanic's lien. Appellant Sherwood, as assignee of the claim of Fred F. Travis, sued to recover 10 per cent. of the entire cost of the building of a 61-room apartment house in Tacoma, upon the real estate described in the complaint. The building cost $32,600. Respondents claim that appellant Travis agreed to do the entire work as architect in drawing the plans and specifications, and as superintendent and builder of construction until the completion of the building for $2,500. Upon conflicting evidence the trial judge found that there was no contract between the parties for 10 per cent. of the cost price of the building, but that there was a contract that appellant Travis was to receive a lump sum of $2,500 for his work. The trial judge refused to allow that sum for the reason that appellant Travis had held himself out to respondents, in order to procure the business, as an architect; that he was not a licensed and certified architect as provided by the law of the state (sections 8270 to 8276 Rem. Comp. Stat. 1922), and therefore was not entitled to any compensation as architect; that the reasonable value of the services of an architect in the construction of a building under the undisputed evidence, would be 5 per cent. of the cost price of the building, but that appellant was not entitled to such compensation not being an architect, and that the reasonable value of the services of the superintendent and builder upon the construction of the building, under the undisputed evidence, would be $10 per day; that appellant Travis worked 121 days, the reasonable value of his services therefore being $1,210, which he allowed appellants, deducting therefrom $702 which had been paid to appellant Travis, and denying any attorney's fees for the foreclosure of the lien, because of appellant Travis having refused to accept a sum greatly in excess of that to which he was entitled before any action was brought. From this judgment Sherwood and Travis both appeal, and respondents Wise cross-appealed, but before the submission hereof they dismissed their cross-appeals.

The appeal is pending therefore upon the appeal of Sherwood and Travis only, and some of the questions urged by respondents Wise, which might be considered if their cross-appeals were before us we cannot now consider.

The entire record has been carefully examined. The somewhat heated assertions and arguments of counsel for appellants as to the rulings and decision of the trial court find little justification in the record.

There is no doubt that there was ample evidence justifying the court in finding that the agreement between the parties for the construction of the building was that $2,500 was to be paid for the entire services, and not 10 per cent. of the cost price. On the other hand, the evidence was amply sufficient to show that, while the building had many defects as it was left by appellant Travis, the services rendered by him were accepted by respondents, and the claims upon the damages alleged by respondents cannot now be considered by us since there is no cross-appeal before us. The evidence shows that respondents, after the completion of the building, as it was completed, which was a substantial performance of the...