Green v. Connell

STEPHENS, J.,

pro

tem.

The plaintiff brought suit on the contract, alleging that he and defendant entered into a contract on the eighteenth day of July, 1922, whereby defendant was to pay plaintiff four per cent of the cost of a building for which plaintiff was to prepare plans and specifications. That he entered upon the work and the “cost of the building was approximately sixty thousand dollars.” That advances had been made by the payment of $756 to plaintiff. That demand upon defendant was made by plaintiff for the “balance of fee according to their agreement.”

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That at such time it was “mutually agreed between the parties that the fee was to be limited to 4% on fifty thousand dollars.” That defendant was not paid and refuses to pay any part of the $1,245, due, owing and unpaid.

All of these allegations are generally denied in the answer. Under a heading “Special Defenses” therein, the employment is admitted, and it is therein alleged that the building was to cost from $20,000 to $25,000, for two per cent thereof and guaranteed by plaintiff that it would not go over $30,000 in cost. Therein it is also alleged that progress payments were made until $155 overpayment had been made.

Defendant filed a cross-complaint and therein, among other allegations, alleged that cross-defendant “undertook to comply with said agreement and worked thereon, that he notified cross-complainant that the work was completed and contract fully complied with and asked approval of plans and specifications. That the building constructed thereunder would not cost to exceed $30,000—that cross-plaintiff signed the plans but did not sign or approve the specifications. That cross-plaintiff is nearly blind and could not clearly see the plans and specifications. Then follows allegations setting up many alleged deficiencies of the plans and specifications.

The defendant also alleged in his cross-complaint that he had inadvertently overpaid the plaintiff the sum of $155, which he prayed to have returned to him together with the sum of $1,500 as damages.

The court found that the parties had entered into a contract on or about the twenty-second day of August, 1922, whereby plaintiff was to execute plans and specifications for a building which was not to exceed a cost of $35,000, and that plaintiff was to receive four per cent of its cost for his services. The plaintiff drew plans and specifications for a house that would cost more than such sum to build, but that they were drawn at the instance and request of defendant and under his supervision. That it is not true that an agreement was ever entered into between the parties that plaintiff should receive four per cent of $50,000. The judgment went for the plaintiff for $730 on the complaint and that cross-complainant should take nothing.