Wolvin v. First Methodist Episcopal Church

MR. JUSTICE Pro Tem. JAMISON Delivered the Opinion of the Court.

This is an action to foreclose a mechanic’s lien brought by the contractor against the owner for contractor’s fee or commission and for the amount remaining unpaid for labor and material. The plaintiff had judgment, from which the defendant has appealed.

In January, 1922, the appellant, in contemplation of the erection of a church building, employed T. B. Barber as its architect and thereafter in March, 1922, Barber conferred

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with respondent, describing in a general way the kind of' building desired, and asked for ¿ssistance in arriving at an estimate of its cost, no written specifications having been made at this time. Barber had with him blue-prints showing three of the floor plans and three elevations and a booklet, which showed a picture of the contemplated building. Thereafter, during the month of March, 1922, Barber and respondent made up an itemized statement of the cost of the building, setting out therein the various things which would be required in such construction, including a commission of $25,000 to be paid the contractor for his services, the total cost of the building including the said commission being estimated to be $470,000.

Respondent testified that on May 28, 1922, he had a conference with the members of the church board and at this conference he laid before them the itemized estimate theretofore prepared by himself and Barber. Some time later respondent was requested to submit his proposition to appellant for the construction of the building and on June 27, 1922, he wrote a letter to appellant’s board of directors in which he offered, in accordance with the plans and specifications prepared by Barber, to construct the church building at a guaranteed cost of $470,000, including therein a commission of $25,000 for his services as contractor, donating $5,000 of this commission to the church, and, also, stating in said letter that this price included $7,050, covering the premium on a bond, that this bond was unnecessary, as payment would be made each month for materials and labor furnished and suggesting that, instead of a bond, appellant should hold the said commission until the building was completed and accepted, thereby saving to appellant the sum of $7,050.

On July 12, 1922, respondent received a letter from Don C. Porter, who was chairman of appellant’s building committee, accepting respondent’s offer, as contained in his letter of June 27, 1922, and stating that respondent was duly employed to construct the church building on the terms and conditions stated in his said letter, and that he was authorized to proceed with said work after July 14th, and that, if a more formal contract was desired, the same would be entered into after Barber, who was then absent, returned.