Spalding v. Burke

• Decision Date: 31 December 1903
• Citation: 33 Wash. 679,74 P. 829
• Parties: SPALDING v. BURKE et al.
• Court: Washington Supreme Court

74 P. 829

33 Wash. 679

SPALDING v. BURKE et al.

Supreme Court of Washington

December 31, 1903

Appeal from Superior Court, King County; Boyd J. Tallman, Judge.

Action by A. W. Spalding against E. C. Burke and others. From a judgment in favor of plaintiff, defendants appeal. Modified.

Moore &amp Farrell and John P. Hartman, for appellants.

Byers &amp Byers, for respondent.

HADLEY J.

The respondent brought this suit against appellants to foreclose an alleged lien upon certain real estate belonging to appellants Burke and wife. The claim of lien is based upon the alleged services of respondent as an architect in preparing plans and specifications for a building to be erected upon the said real estate and in superintending the construction thereof as the architect in charge. A written agreement was entered into, signed by appellant E. C. Burke and respondent, whereby, in consideration of the sum of $1,500, to be paid by said Burke, the respondent agreed to furnish the necessary plans and specifications and to look after the construction of a 12-apartment building. It is alleged that $1,000, and no more, has been paid, and foreclosure of a lien is demanded for the balance. Appellant Ackerson answered separately, denying material allegations of the complaint, admitting that she claims a lien against the premises, denying that it is inferior to respondent's alleged lien, and alleging that it is a first lien. Appellants Burke and wife answered, admitting the claim of appellant Ackerson, and alleging that at all times mentioned the respondent and one A. J. Russell were copartners under the firm name of Spalding-Russell Company that appellant E. C. Burke entered into a written contract with respondent and said Russell as said firm; that it was agreed and understood that said firm should furnish the plans, specifications, and details and should superintend the construction of said building for the sum of $1,500; that prior to the commencement of this action the said sum was fully paid. The answer also sets up a claim for damages by way of counterclaim for alleged defective work. A trial was had before the court without a jury, which resulted in a judgment in favor of respondent against appellants Burke and wife for the sum of $500 and interest, together with an attorney's fee of $150 and costs. The judgment was also declared to be a first lien upon the said real estate, and foreclosure of the lien was decreed. This appeal is from said judgment and decree.

The principal contention of appellants is that the contract for the services was with the firm of Spalding-Russell Company and that the services were rendered by the firm, rather than by respondent individually. It is therefore urged that respondent cannot himself maintain this action, since he is not, as an individual, the party in interest. The original written contract purports to have been signed by respondent as an individual, and neither the writing nor the signature thereto makes any reference to the firm of Spalding-Russell Company. Nevertheless the firm of Spalding-Russell Company existed when the written contract was signed, and the firm was engaged in conducting the general business of architects. Certain negotiations were had between respondent and appellant E. C. Burke, which involved, among other things, the services of the latter as an architect. Such negotiations began some weeks before the formation of the partnership between Spalding and Russell, but the aforesaid written agreement was made after the partnership came into existence. Respondent testified that the original negotiations contemplated a partnership arrangement between himself and appellant E. C. Burke, by which respondent was to share in the ownership of the property when improved, and that his services were to be considered as a contribution to this arrangement. He further testified that, after acting for a time under such an understanding, he desired to withdraw from the partnership arrangement with Burke, and that it was agreed that Burke should pay him $1,500 as a consideration for his withdrawal from and release of his interest in that arrangement, and also as further consideration for his services in furnishing the plans and specifications and in superintending as an architect the construction of the building which Burke proposed to erect, said building to be of the same plan as originally contemplated under the joint arrangement. The written contract was the consummation of the lastnamed arrangement. He also testified that immediately after the contract was made he told Russell, his...