Valentine v. Quackenbush

• Decision Date: 13 February 1917
• Docket Number: 2752.
• Citation: 239 F. 832
• Parties: VALENTINE v. QUACKENBUSH.
• Court: U.S. Court of Appeals — Ninth Circuit

239 F. 832

VALENTINE v. QUACKENBUSH.

No. 2752.

United States Court of Appeals, Ninth Circuit.

February 13, 1917

J. H Cobb, of Juneau, Alaska, for plaintiff in error.

Shackleford & Bayless and V. A. Paine, all of Juneau, Alaska, for defendant in error.

Quackenbush plaintiff below, doing business under the firm name of Juneau Construction Company, brought action against Valentine defendant below, to recover $5,020.92, with interest from April 1, 1914, alleging that at defendant's request he furnished to defendant all materials and labor used in erecting and remodeling three buildings; that the cost was $27,931.59; that defendant agreed to pay him the cost of materials and labor and 10 per cent. of such cost for services in superintending and remodeling; that he demanded payment, but was refused.

Defendant Valentine answered that plaintiff agreed to superintend the erection according to plans furnished by defendant, and to purchase all needed material at market prices, less dealer's discount; that defendant was to furnish funds as needed to pay for labor and material, and accounts were to be kept by plaintiff, and that, upon completion of the work plaintiff was to receive a sum equal to 10 per cent. of the total cost of labor and material employed, brought and paid for through plaintiff; that defendant paid plaintiff $28,432.37 under the contract; that the account rendered by plaintiff was incorrect; that defendant was not liable for $539.40 for plan of block, as included in the bill of particulars, or for $561.72 for 10 per cent. on sundry accounts, because certain items referred to were not paid for through plaintiff; that the accounts rendered were not accurate; and that upon true accounting a balance would be due to defendant.

In his replication the plaintiff denied that he undertook to erect two buildings according to the plans furnished by the defendant, and admitted that he was to receive, upon completion of the work, a sum of money equal to 10 per cent. of the total cost of the labor and material used and paid for by him or the defendant, but denied the other allegations set up in the answer. Plaintiff admitted that none of the sundry accounts, which embraced items for a heating plant, installation of a lighting and telephone system, plumbing, and painting, were paid for by or through the plaintiff, but he denied that defendant was not liable.

The case was tried to a jury, and verdict was rendered in favor of plaintiff for $3,706.07, with interest from May 1, 1914. Defendant sued out a writ of error.

Before GILBERT, MORROW, and HUNT, Circuit Judges.

HUNT Circuit Judge (after stating the facts as above).

The defendant, plaintiff in error here, assigns as error the action of the court in admitting evidence tending to show that the contract between plaintiff and defendant provided for a commission of 2 1/2 per cent. of the cost of one of the buildings remodeled, for plans, in addition to the 10 per cent. of such cost for the services of the plaintiff. It is said that there was no issue raised as to what plaintiff was to be paid, and that the exception to the admission of such evidence was well taken. But in the bill of particulars, which was furnished by plaintiff before answer, there was a specific charge of $666.82 for plans for the Valentine Block, and in the answer the defendant specifically referred to the bill of particulars filed, and denied liability for the items of $539.40, 'plan for block, or for any sum whatsoever therefor,' because plaintiff did not furnish such plan and was not entitled to any charge therefor. Upon the trial plaintiff testified that it was distinctly agreed with the defendant, Valentine, that 2 1/2 per cent. was to be the cost of the plans, which was reasonable and customary for architectural work; that the 10 per cent. of the total cost of the building, to which he was entitled, was for superintendence and material furnished, but that the additional 2 1/2 per cent. for the plans of the Valentine Block was calculated upon the net cost of the building, as was customary in making architect's fees. Defendant denied that there was such an agreement and gave his version. The court submitted the issues thus presented, and distinctly told the jury that it was for them to determine from the evidence on both sides what the contract was as to the plans, saying:

'If you

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