Needham v. Chandler

COOPER, P. J.

This action was brought to recover a balance of $1,559.17, for money paid out and expended and commissions earned by plaintiff under a contract for the construction of a building for defendant. The case was tried before the court, findings filed and judgment entered thereon in favor of plaintiff. This appeal is from the judgment.

The contract out of which the controversy arose was made May 29, 1905, and was in writing. It provided that in consideration of a commission of ten per cent of the cost of construction of the building the plaintiff would draw all plans and specifications, and, when completed, turn over all bills properly signed; that plaintiff would procure all materials at the lowest possible cost to defendant, and in every way possible save expense to defendant; that the defendant should advance the money in four payments of about $1,000 each, the first payment to be made when the frame was up, the second payment when the brown mortar was on, the third payment when the building was completed, and the fourth payment when all bills were paid. There was in the contract no limitation in the cost of the structure except the reference to the four payments of about $1,000 each, as before stated. It was clearly agreed that the plaintiff was to be paid by a percentage of the actual cost of the building. It is stated in defendant’s brief that plaintiff" offered and introduced in evidence the contract set forth in his amended complaint, and testified that he had

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complied with all the terms and conditions of the same, and performed all of his obligations thereunder. He also introduced evidence and vouchers, showing on their face the payment of the various sums testified to by him. ” We have found no testimony, and none has been pointed out to us, tending to contradict the payment of the amounts as stated in the vouchers, or that the several amounts so paid were not the reasonable value of the items represented by the vouchers.

It is claimed that the court should have found upon the defense set up by defendant, to the effect that the contract was in writing, exceeded $1,000 in amount, and that it was not recorded.

In our opinion it was wholly immaterial as to whether or not the contract was filed for record. The controversy is between the original parties to the agreement. It does not involve any question as to a lien for material, labor or the claim of a third party. The contract in effect was merely an authorization in writing, by which plaintiff was to act as agent for defendant for a compensation named in the writing. The law does not require such contract to be recorded.