White v. City of Seaside

• Decision Date: 01 May 1923
• Citation: 107 Or. 330,213 P. 892
• Parties: WHITE v. CITY OF SEASIDE.
• Court: Oregon Supreme Court

213 P. 892

107 Or. 330

WHITE v. CITY OF SEASIDE.

Supreme Court of Oregon

May 1, 1923

Department 2.

Appeal from Circuit Court, Clatsop County; James A. Eakin, Judge.

Action by F. Manson White against the City of Seaside. From judgment for defendant, plaintiff appeals. Affirmed.

On the 27th day of March, 1920, plaintiff filed his complaint in this cause, which is as follows:

"I. That at all times herein mentioned, the plaintiff was, and still is, an architect by profession and engaged in business as such architect.

"II. That at all the said times the defendant was, and still is a municipal corporation in the county of Clatsop, state of Oregon, created and existing under and by virtue of the Constitution and laws of the state of Oregon and a charter adopted by the legal voters of said city at a special election held on the 28th day of Feb., 1912, and amendments thereto, and at all said times defendant was, and still is exercising its authority and powers by and through a mayor and common council, and did, and still does, perform the functions usually exercised by municipal corporations of its kind, and was, and still is, engaged in public business as such municipal corporation.

"III. That on the 25th day of June, 1917, the defendant filed with the librarian of the Supreme Court of the state of Oregon a duly certified copy of said charter and all amendments thereto, and subsequently filed with said librarian duly certified copies of all subsequent amendments of the same.

"IV. That on and between the 15th day of November and the 1st day of December, 1913, the defendant was contemplating the erection of a municipal building within the corporate limits of defendant and for the use and public business of defendant and the community embraced by its corporation, and on and between the dates last mentioned the plaintiff as such architect, at the special instance and request of defendant designed said building and made and delivered to the defendant the drawings, plans, elevations, and sections and full specifications covering materials and workmanship required for the erection and completion of said building and blueprints and copies of specifications therefor, all of the reasonable value of $811.30, no part of which has been paid and the defendant made use of the same in the construction of its municipal building.

"That by subdivision 24 of section 9 of said charter said common council is granted power 'to erect and maintain a city hall' and other buildings."

The defendant answered, denying every allegation, excepting that it admitted that the council had the power to erect a city hall and other buildings, and further pleaded a former adjudication in this case, setting forth the proceedings in the former case in full, by which it appeared that plaintiff had brought an action upon an alleged contract in writing which contract is as follows:

"This article of agreement, made by and between the city of Seaside, known herein as the party of the first part acting by its mayor and auditor and police judge, and F. Manson White, known herein as the party of the second part, witnesseth: That, whereas by the terms of a resolution adopted by the common council of the city of Seaside on the 20th day of November, 1913, the said party of the second part was retained and employed as an architect to prepare plans and specifications for a new city hall building that the said party of the first part proposes forthwith to erect on lots sixteen (16) and seventeen (17) of block one (1) in the first addition to Ocean Grove in the city of Seaside, Or., and to superintend the construction of such building, all strictly under the terms and conditions and limitations as expressly set forth within said resolution:

"Now, therefore, it is expressly understood and agreed by and between said parties that such resolution shall be deemed as a component part of this contract, and the said party of the second part agrees that he shall be bound by the terms and conditions, and the expressed limitations in said resolution contained, and agrees to prepare in a first-class and workmanlike manner architectural drawings, and the like, and proper and satisfactory plans and specifications for such proposed city hall building, and to do all of such work without any unnecessary delay, and also agrees and binds himself to actively, constantly, and thoroughly superintend the construction of such building, if the same be constructed, for which all of said services the said party of the second part shall be paid as follows:

"For all of such drawings, blueprints, plans, and specifications, and all other necessary preparatory work, a commission of 3 1/2 per cent. upon the accepted cost price of said building, and an additional commission of 1 1/2 per cent. for his services in constantly superintending the construction of said building until the same be finally completed, thus making a total payment unto him of 5 per cent. upon the contract price.

"Always provided that if, for any reason, the said party of the second part refuses, fails, or neglects, or if in any manner by his own violation or act becomes unable or incompetent to superintend such work as aforesaid, then in that event he shall be paid merely 3 per cent. for all of said drawings, plans, specifications, and the like, which shall be in full and entire payment for all services rendered by him, including his work in superintending the construction of said building.

"The party of the first part agrees to pay unto the party of the second part the sum of 3 per cent. within a reasonable time after the opening of bids for the construction of the...