Weatherhogg v. Bd. of Com'rs of Jasper Cnty.

• Decision Date: 15 January 1902
• Parties: WEATHERHOGG v. BOARD OF COM'RS OF JASPER COUNTY et al.
• Court: Indiana Supreme Court

158 Ind. 14

62 N.E. 477

WEATHERHOGG

v.BOARD OF COM'RS OF JASPER COUNTY et al.

Supreme Court of Indiana.

Jan. 15, 1902.

Appeal from circuit court, White county; T. F. Palmer, Judge.

Action by Charles R. Weatherhogg against the board of commissioners of Jasper county and another. From a judgment in favor of defendant board, plaintiff appeals. Reversed.

Robertson & O'Rourke, for appellant. Foltz, Spitler & Kurrie, for appellees.

HADLEY, J.

The commissioners of Jasper county employed Alfred Grindle, an architect, to prepare plans and specifications and to superintend the building of a court house. This suit involves the amount of compensation to which the architect became entitled under his contract of employment. The contract was in writing, and so much of it as relates to the question in controversy is as follows: “The plans and specifications of said building shall be for a building that shall not exceed in cost, for a fully completed, fireproof court house, the sum of one hundred thousand dollars. This to include all permanent fixtures and appliances. Should the bids on contract or contracts for said building exceed the aforesaid limit of cost, or should said first party, for any reason, at any time call for and require changes and modifications of said plans and specifications, or for entirely new plans, specifications, and detailed drawings, said second party shall furnish the same without additional expense. Said second party shall superintend the erection and construction of said building, and all parts thereof, making thorough inspection of all labor and materials, and promptly reject all labor, materials, appliances, and fixtures of every kind and nature that fall below the grade required by the specifications. He shall also be present at the letting of all contracts to advise with said first party, and at such other times as first party shall request. Said second party also specially agrees that he will be responsible for, and pay to first party, all damage and expenses and loss and extras and damages of every kind and nature that may be incurred on account of any neglect, mistake, omission, or incompetency upon his part, either in drawing or preparing the plans, specifications, and contracts, or inspecting and superintending the materials, appliances, and construction of said building; and accepting said plans and specifications, materials, appliances, building, or any portion thereof, by said first party, their agent or superintendent, shall in no wise release said second party from his liability herein, if any defects, mistakes, extras, or changes, or omissions of any kind, aforesaid, are hereafter discovered or required, and also pay first party any excess said fully completed building may cost over and above the estimate made by said second party, unless said excess cost is caused by changes and extras ordered by first party. *** For the performance and execution of the duties and obligations herein assumed, said second party shall be paid as follows: First. For preparing and furnishing said detailed drawings, plans, and specifications and contracts, three per cent. of the actual cost of said complete building; two per cent. of the estimated cost to be paid when said detailed drawings, plans, and specifications are accepted by said first party; one per cent., when the contracts for erection and construction for said building are executed. Second. The payment to second party for superintending the erection and construction of said building shall be two per cent. of the cost of said completed building, payable pro rata as contractor's estimates are paid. The aforesaid commission shall be based on the total cost of the fully completed building, and the permanent appliances and fixtures thereto attached, but shall not include any commission upon any of the movable furniture or fixtures, such as tables, seating chairs, metallic or other kinds of paper files and book and record cases, grading grounds, putting in walks, or sewers outside of building.” There are three paragraphs of complaint. The first two are founded on the written contract, and are substantially the same. The third is upon the quantum meruit. The assignments of error call in question the action of the court in sustaining a demurrer to each paragraph of the complaint. The ruling upon the third paragraph is waived by failure of appellant to discuss it. In substance, it is alleged in the other two paragraphs that appellee in December, 1896, entered into a written contract (a copy of which is filed) with Alfred Grindle whereby the latter undertook to prepare for appellee full, detailed, and finished plans and specifications for the construction of a court house, and to superintend the construction thereof, and to attend the letting of all contracts; and to make estimates of the work as the work progressed, for which services the said Grindle was to receive, by the terms of said contract, for the preparation of said plans and specifications, a sum equal to 3 per cent. of the actual cost of said completed building, and for superintending the erection of said building an additional sum equal to 2 per cent. of the actual cost of said completed building, including all permanent appliances and fixtures. Under his employment, Grindle was to prepare plans and specifications for a fireproof building that would cost not exceeding $100,000, including all permanent appliances and fixtures. Grindle did prepare plans and specifications for such a building that would cost not to exceed $100,000, which plans and specifications were approved and accepted by the appellee; but, after said approval and acceptance, appellee made and ordered changes and additions to said plans and specifications, which required for the construction of the building so ordered and designed $149,603, and all the cost of said building in excess of $100,000 was caused by the changes, additions, and extras ordered by appellee. After the making of said contract, and after its partial execution, Grindle, with the knowledge and consent of appellee, entered into a contract of copartnership with Weatherhogg, appellant, to conduct the business of architects, including the completion of Grindle's said contract with appellee, and afterward, with the further and full knowledge and consent of appellee, and before the completion of said court house, the partnership of Grindle & Weatherhogg was by mutual consent dissolved, by the terms of which dissolution all the rights, claims, and obligations of Grindle under the said contract with appellee were, with the knowledge and consent of appellee, assigned to appellant. The cost of the completed court house was $149,603. The contract with Grindle transferred to appellant has been fully and satisfactorily performed. Appellee has paid appellant and his assignor of the contract $5,112. There remains due and unpaid $1,312, for which judgment is demanded. Grindle is made a party defendant to answer to his interest, and files a disclaimer. A claim for the balance due had been previously filed with the auditor of Jasper county, and had been disallowed by appellee.

1. The chief contention involves the construction of the contract sued on. Appellant insists that under the contract he is entitled to a compensation equal to 5 per cent. of the actual cost of the completed court house, including permanent appliances and fixtures, while, on the other hand, appellee asserts that, under the proper construction of the contract, appellant's compensation is limited to 5 per cent. of the cost of the building, not to exceed $100,000, and, as it is admitted in the complaint that $5,000 has been paid, it is thereby affirmatively shown that appellant has no cause of action. The contract is inaptly drawn, and upon first blush it seems that the first and last paragraphs quoted are inconsistent. This apparent inconsistency, however, disappears upon closer examination. The first clause of the first paragraph is manifestly the mere statement of the basis from which the architect shall work in the preparation of the initial plans and specifications; and, when construed with the balance of the paragraph, it becomes plain that the purpose of the language was not to set up a limit to the architect's compensation for the completed work, but to impose upon him the obligation of drawing, without extra charge, all such modifying, amendatory, and supplemental plans and specifications as the commissioners might require in reaching a satisfactory and final conclusion as to...