Meyer v. Buckley

KERRIGAN, J.

This is an action by plaintiffs against the defendant to recover for certain services as architects "alleged to have been rendered by plaintiffs at the instance and request of defendant.

[97]

The first count is founded upon an express contract to recover five per cent of the total cost of certain improvements, alterations, and additions to the Baltimore Hotel, situated in San Francisco, as compensation for their services as architects in superintending said work. , It is alleged therein that said improvements, alterations, and additions cost the sum of $11,713.08, and that five per cent thereof is the sum of $585.65. In the second count the sum of forty dollars is prayed for, as reasonable compensation for the services of said plaintiffs in superintending certain plumbing work in said Baltimore Hotel. The third count is for the purpose of recovering the sum of $11.20 expended by said plaintiffs for the use and benefit of said defendant in procuring permits, etc.

The trial court refused to instruct the jury, in response to one of the issues framed by the pleadings, and as requested by the defendant, that if they believed that defendant would not have entered into the contract agreeing to pay plaintiffs five per cent of the costs of the improvements and additions to the Baltimore Hotel if the plaintiffs had not represented to him that the total cost of such work would not exceed the sum off three thousand dollars, their verdict should be in favor of the defendant. In refusing to thus instruct the jury we think, under all the circumstances of the case, that the court did not commit error for which the judgment must be reversed.

During the early negotiations between the parties some time in the latter part of July, 1903, the plaintiffs did suggest to the defendant that he limit the tenant at that time to the sum of two thousand five hundred dollars or three thousand dollars as the cost of improvements and additions to be made; but, according to the undisputed facts, weeks before the contract in question was executed both parties knew that the work contemplated would exceed the larger of those sums by over seven hundred dollars; and just a few days before the contract between the parties was made, and long after the conversation about the limit of three thousand dollars, the defendant secured new tenants, and agreed in writing with them to make additional alterations and improvements in the building, the reasonable value of which it is not questioned was about eight thousand dollars. The contract fixing the compensations does not limit the cost of the work; and any statement or suggestion in the case tending to support the issue referred to