Waddington v. Wick

• Decision Date: 29 March 1983
• Docket Number: No. WD,WD
• Citation: 652 S.W.2d 147
• Court: Missouri Court of Appeals
• Parties: Edward H. WADDINGTON, Plaintiff-Respondent v. Charles Z. WICK and Mapleton Enterprises, Defendants-Appellants. 32487.

Page 147

652 S.W.2d 147

Edward H. WADDINGTON, Plaintiff-Respondent v. Charles Z. WICK and Mapleton Enterprises, Defendants-Appellants.

No. WD 32487.

Missouri Court of Appeals Western District.

March 29, 1983.

Motion for Transfer to Supreme Court

Denied May 31, 1983.

Application to Transfer Denied

June 30, 1983.

Carl H. Helmstetter, Spencer, Fane, Britt & Browne, Kansas City, for defendants-appellants.

Robert M. Modeer, Hoskins, King, McGannon, Hahn & Hurwitz, Kansas City, for plaintiff-respondent.

Before SOMERVILLE, C.J., and WASSERSTROM, TURNAGE, MANFORD, KENNEDY, NUGENT and LOWENSTEIN, JJ.

TURNAGE, Judge.

Edward Waddington brought suit against Charles Wick and Mapleton Enterprises for the reasonable value of his architectural services. After a bench trial, the court entered judgment in favor of Waddington for $39,381.67, which it determined to be the value of the architectural service he had performed. On this appeal, Wick contends that the judgment should be limited to the contract price agreed upon by the parties. Reversed and remanded.

Waddington filed a petition alleging that he had performed architectural services for Wick and Mapleton, a corporation in which Wick was the principal stockholder, for plans and specifications regarding the expansion and rehabilitation of the Holmesdale Convalescent Center. Wick answered and attached a copy of a contract between himself and Waddington. Wick's answer alleged the payment of certain amounts on a contract between himself and Waddington, and alleged defective performance on the part of Waddington. Wick contended that if Waddington were entitled to anything, he was restricted to the contract amount less payments already made by Wick. Wick filed a counter-claim alleging both untimely and defective performance by Waddington.

The court entered findings of fact in which it made no finding concerning the existence of a contract. However, Wick and Waddington agree that they entered into a contract ¹ on November 21, 1977, which stated that Wick intended "to erect a new wing and rehabilitate the existing facility totaling 120 beds for FHA Project No. 084-43041-PM-SR, known as Holmesdale Convalescent Center, 8039 Holmes, Kansas City, Missouri." ² The contract provided that Waddington would provide all architectural, engineering, and consulting services. It further stated: "The owner [Wick] agrees to pay in addition to the contract price, the cost of any supplementary drawings required by reason of construction changes as agreed to by both parties." The contract also provided that Waddington would receive a total fee of $26,640, to be paid in installments of 75% at the completion and acceptance of the working drawings, and the balance to be paid monthly as the work progressed.

There is no dispute that Wick desired to obtain a federally insured loan to rehabilitate the existing convalescent center, as well as add a new wing thereto. This fact was well known to Waddington at the time that the contract of November 21 was entered into. Although the contract made no reference to the estimated cost of construction of the rehabilitation and the new wing, the parties agree that Waddington estimated that the cost would be about $477,000. The fee to be paid to Waddington under the contract made no reference to any estimated or bid cost of the work, but rather was a flat fee.

Waddington began work after signing the November 21 contract, and he completed the detailed plans and specifications on September 17, 1978. At that time, two contractors were invited to estimate the cost of construction. The lowest of these estimates was about $733,000. For several reasons, one of which was the excess of the contractor's estimate over Waddington's estimate, Wick abandoned the project.

Waddington's theory at trial and on this appeal is that Wick did not plan to add 20 private baths to 20 of the existing rooms, or plan for certain other engineering modifications at the time that the November 21 contract was signed. Waddington claims that the plans and specifications completed by him on September 17, 1978, contained both plans for making private baths in those 20 rooms and certain other engineering modifications, and that this constituted work outside the scope of the contract, for which he should be compensated. He also claims that the reasonable fee to which he is entitled is 6% of the contractor's estimate of about $583,000 for the new wing, and 8% of the $150,000 estimate for rehabilitation. Waddington first claimed that he was entitled to payment in excess of the contract price in a bill which he submitted on September 25, 1978, well after he had completed all of the requested plans and specifications.

The trial court found that the architectural services required as a result of the increase in the number of bathrooms by 20 and certain other engineering modifications constituted extra work on the part of Waddington. The court found that the reasonable fee due Waddington was 8% of the estimated cost of the rehabilitation work of $150,000, and 6% of the new construction estimate of $583,000. ³ Giving credit for payments made resulted in the amount of the judgment. As noted, the court made no mention of the contract for architectural services.

There is no doubt that a party may ignore an express agreement and bring suit for the reasonable value of services rendered. In such circumstances, the party is limited in recovery to the contract price. Boyd v. Margolin, 421 S.W.2d 761, 767-68 (Mo.1967). This rule may be avoided, however, in cases where either the contract has been abandoned, ⁴ or the tasks performed constitute extra work.

In order to prove that a contract was abandoned, the abandonment must be demonstrated by positive and unequivocal acts and conduct which are inconsistent with a mutual intention to be further bound by the contract. Julian v. Kiefer, 382 S.W.2d 723, 729-30[8-14] (Mo.App.1964). In other words, an intent to abandon a contract is not enough. Rather, this intent must be carried into effect by an external act. Miran Inv. Co. v. Medical West Bldg. Corp., 414 S.W.2d 297, 303[9, 10] (Mo.1967).

There have been no such positive and unequivocal acts demonstrating a mutual intention to abandon the contract in this case. This case arises out of a difference in opinion regarding the scope of the contract between Wick and Waddington. Specifically, the focus of the dispute is whether certain changes and modifications involving the addition of 20 bathrooms and other engineering modifications were within the scope of the contract. Thus, this case involves the construction of a contract, rather than the abandonment of one.

Similarly, the extra work doctrine ⁵ is inapplicable in this case. Extra work in the context of building contracts refers to work not contemplated by the parties at the time of contracting and entirely independent of what is required in performance of the contract. Kaiser v. Lyon Metal Products, Inc., 461 S.W.2d 893, 898 (Mo.App.1970). Regardless of which way the factual questions in this case are resolved, Waddington's completed plans and specifications cannot be said to have been entirely independent of what was required in the performance of the contract between Wick and Waddington. The remaining question is whether the work performed by Waddington was contemplated by the parties at the time of contracting.

The extra work doctrine is generally applied to the relationship between a contractor or a subcontractor and an owner, rather than to the relationship between an architect and an owner. Thus in order to determine whether or not the parties contemplated, at the time of contracting, that Waddington was to provide architectural services for the 20 additional bathrooms and other engineering modifications, it is necessary to determine whether the extra work doctrine should be applied to the architect-owner relationship as well.

The crucial focus of this inquiry is whether, in this context, the roles of architects and builder/contractors ⁶ are distinguishable. An architect is one who makes plans and specifications for designing buildings and other structures, and supervises their construction. See, e.g., Stephens County v. J.N. McCammon, Inc., 122 Tex. 148, 52 S.W.2d 53, 56 (Texas 1932); Black's Law Dictionary 97 (5th ed. 1979); 6 C.J.S. Architects § 2 (1975). In lay person's terms, a property owner tells an architect basically what kind of structure is desired, and the architect takes it from there, designing the specifications which are later used by engineers and builders.

On the other hand a builder, or contractor, or building contractor, is one who contracts with an owner to build and erect the structure according to the plans developed by the owner and the architect. See, e.g., Black's Law Dictionary 176 (5th ed. 1979) and 17 C.J.S. Contracts § 11 (1963).

Thus, a builder does not stand in the same relationship to an owner as does an architect. At the time that an owner and an architect contract, the precise specifications of the structure are necessarily rather amorphous, since creating such plans and specifications is the very service for which the owner contracts with the architect. The relationship between the owner and the builder, however, is much more defined at the time their contract is entered into, since it is based on the plans and specifications developed by the architect.

It follows from the above discussion that the extra work doctrine should not be applied to the relationship between Wick and Waddington. Thus, since neither this exception nor the abandonment exception is applicable, this case is governed by the general rule that in suing for the reasonable value of services rendered, a party's recovery is limited to the contract price. This conclusion can be verified by examining the case law regarding the scope of an architect's contractual duties arising out of an owner-architect contract.

There are few cases which...