Sherwood v. Wise

• Decision Date: 09 January 1925
• Docket Number: 18515.
• Citation: 132 Wash. 295,232 P. 309
• Court: Washington Supreme Court
• Parties: SHERWOOD v. WISE et ux.

232 P. 309

132 Wash. 295

SHERWOOD v. WISE et ux.

No. 18515.

Supreme Court of Washington

January 9, 1925

On rehearing en banc. Opinion in department overruled in part and trial court's judgment affirmed.

For departmental opinion, see 227 P. 323.

Pemberton J., dissenting.

Ralph Woods, of Tacoma, for appellant.

John A Homer, of Seattle, amicus curiae.

Bates &amp Peterson, of Tacoma, for respondents.

PARKER J.

This appeal was before department 1 of this court, and a decision rendered therein on July 7, 1924, reversing the judgment of the superior court and directing a judgment to be rendered in favor of the plaintiff, Sherwood, and against the defendants, Wise and wife, for a larger amount than was awarded by the superior court. 227 P. 323. A rehearing being ordered before the court en banc, and the case having been reargued therein, with the submission of additional briefs, we have arrived at the conclusion, and feel constrained to hold, that the disposition of the case by department 1 was erroneous, and that its disposition by the trial court was correct.

Sherwood's assignor, Travis, entered into a contract of employment with Wise and wife by which he agreed as an architect to prepare plans and specifications for and to superintend the construction of a 61-room apartment house for them in Tacoma, contemplated to cost between $30,000 and $40,000. Travis represented himself to Wise and wife to be an architect, and capable of undertaking all such services; that is, the drawing of plans and specifications as well as the superintendence of the construction of the proposed building. He not only so represented himself before entering into the contract, but he signed the plans and specifications made by him for the construction of the building, as an architect. Travis claims that his agreed compensation was to be 10 per cent. of the total cost of the finished building; while Wise and wife claim that his agreed compensation was to be a lump sum of $2,500. Travis proceeded with the preparation of the plans and specifications and the superintendence of the construction of the building to its completion, when it was found to have cost approximately $32,600. Wise and wife refusing to pay 10 per cent. of that sum demanded by Travis as his claimed agreed compensation, Travis assigned his claim to Sherwood, who now seeks recovery accordingly from Wise and wife and the foreclosure of his claim of lien therefor upon the building and the lot upon which it is situated. Wise and wife had paid to Travis $702 towards his services, and had offered to pay the balance of the $2,500 originally agreed upon, though they had insisted that the building was defectively planned and constructed to their damage in a much larger sum than the $2,500 agreed by them to be paid. This occurred before the assignment of the claim by Travis to Sherwood and the commencement of this action.

Wise and wife defended the action upon the grounds (1) that the agreed compensation of Travis was to be only $2,500; (2) that Travis so defectively planned and superintended the construction of the building that they were damaged thereby in a sum greater than any possible amount due Travis for his services under the contract, though the contract be a legal one giving Travis a lawful right to compensation for services thereunder; and (3) that Travis, holding himself out to them to be an architect, and contracting with them as such, when in fact he was not a licensed architect under the laws of this state, is not in any event legally entitled to any recovery for his services. The trial court found that the agreed compensation of Travis was to be $2,500. This finding is well supported by the evidence. The trial court also found that the building was so defectively planned and constructed by reason of the want of skill of Travis that when it was completed it was worth $1,650 less than it would have been worth if it had been planned and constructed with reasonable care and skill. While the decision of department 1 indicates a different view upon this question, we are now inclined to agree with the trial court, though, as we proceed, we think it will appear that it will not be necessary to definitely decide this somewhat troublesome question of fact. The trial court denied recovery upon the $2,500 compensation contract, upon the theory that no recovery could be had thereon because of Travis' holding himself out to Wise and wife as an architect, and contracting with them, as such when in fact he was not a licensed architect under the laws of this state; but awarded recovery against Wise and wife for services rendered by Travis in superintending the construction of the building at the rate of $10 per day for 121 days, that is, $1,210 in all, less $702 paid to him by Wise and wife, rendering judgment in favor of Sherwood as assignee of Travis for $508, and decreed foreclosure of the lien claimed therefor accordingly. From that disposition of the case Sherwood appealed to this court, and thereafter Wise and wife also appealed. The latter appeal was, however, abandoned and dismissed by Wise and wife, so our only problem here is as to whether or not Sherwood was awarded recovery in an amount equal to or in excess of that to which he was entitled as the assignee of Travis.

Our Legislature of 1919 passed an act relating to the licensing of architects. Laws of 1919, c. 205 (section 8270 et seq. Rem. Comp. Stat.) Section 1 of the act reads:

'Any person residing in or having a place of business in the state, who, before this act takes effect, shall not have been engaged in the practice of architecture in the state of Washington, under the title of architect, shall before assuming the title of architect, secure a certificate of his qualifications to practice under the title of architect, as provided by this act. Any person who shall have been enegaged in the practice of architecture under the title of architect before this act takes effect, may secure such certificate in the manner provided by this act. Any person having a certificate pursuant to this act may assume the title architect. No other person shall assume such a title or use any abbreviation thereof, excepting only landscape architects and naval architects, and not excepting these two classes if they combine with their landscape and naval work respectively the planning of buildings and supervision of their erection.'

Section 2 provides for a board of examiners. Section 3 reads:

'Any citizen of the United States, or any person who has duly declared his or her intentions of becoming such citizen, being at least twenty-one years of age, may apply for examination or certificate of registration under this act. The examination shall have special reference to the construction and design of buildings, and a test of knowledge of the candidate of the strength of materials and of his or her ability to make practical application of such knowledge in the ordinary professional work of an architect, and in the duties of a supervisor of mechanical work on buildings, and should also seek to determine his or her knowledge of the laws of sanitation as applied to buildings. The applicant who shall satisfactorily pass such architectural examination as shall be established by the board of examiners, shall be granted a certificate. The board of examiners in lieu of all examinations may accept:

'(a) A diploma of graduation or satisfactory certificate from a recognized architectural school or college.

'(b) Registration or certification as an architect in another state or country where the standard or qualifications for the same are not lower than those required by the board of examiners under this act shall be accepted by said board of examiners, and such architect may receive certification without examination.'

Section 4 provides for the manner of evidencing the right of persons practicing architecture at the time of the passage of the act, and for the issuance of license certificates to such practitioners. Section 8 reads as follows 'Any violation of this act shall be a misdemeanor punishable for the first offense by a fine of not less than fifty dollars ($50.00) and not more than one...