Fitzhugh v. Mason

SMITH, J.

The plaintiff is an architect and brings this suit for the breach of an alleged contract of employment by the defendants. On May 5, 1903, the court made the following order: “Findings ordered in favor of the plaintiff. Damages will be fixed at the sum of $700.” The findings and judgment were filed February 2, 1904, and judgment thereon entered for plaintiff in the sum of $700; from which, and an order denying his motion for a new trial, he and the defendant Mason each appeal.

The allegations of the complaint as to the contract are, in effect: That during the month of October, 1901, the defendants entered into negotiations with plaintiff, which continued until about the eighteenth day of November, 1904, and resulted in a contract, whereby “the defendants employed, plaintiff to act as architect for them in the erection and construction by them, in the city of Los Angeles,” etc., “of an opera-house and an eight or ten story building,

and agreed to pay him, five per cent on the cost price thereof,

and his traveling expenses for his services as such architect”; that the cost of said buildings as contemplated by said defendants at the time of said agreement would be not less than $300,000; that plaintiff performed certain services under the contract, and was not only ready and willing to carry it out, but offered to do so to the defendants, who refused to carry out the terms of the agreement, or to pay the plaintiff therefor; and that plaintiff’s compensation as architect under the said agreement would amount to $15,000, and his damages, by reason of the breach, to the like sum. The court finds the contract as set out in the complaint; but further finds

“that the cost of said building, as contemplated by said defendants at .the time of said agreement, was not definitely determined, and defendants did not agree that the building should cost any certain sum.”

It is further found: That the plaintiff offered to perform; that at that time he had not obtained a certificate from the state board of architecture under the act of March 23, 1901 (Stats. 1901, p. 641,

[223]

c. 212); that the defendants refused to carry out the agreement; that the opera-house, as contemplated by the defendants and subsequently modified by them, was constructed by the defendant Mason, after the commencement of this action, “at a cost of more than $130,000”; and that the plaintiff was damaged in the sum of $700. The only specification made by the plaintiff is that the evidence is insufficient to justify the finding italicized. But we think this finding is fully supported by the evidence.