Clark v. Conley School District

NOURSE, J.

Plaintiff sued for servees rendered, praying for judgment in the sum of $13,552. The cause was tried before the court without a jury .and resulted in a judgment in favor of plaintiff in the sum of $3,000. From this judgment the plaintiff has appealed on a typewritten record.

The complaint pleaded three distinct causes of action: The first was based upon a written contract with the members of the board of trustees of the defendant district wherein the plaintiff was employed as the architect of the district for the preparation of plans and specifications for new buildings and.additions and alterations to present buildings, and also to supervise the construction, completion, and alteration of said buildings as required by the board. The second cause of action pleaded the same facts and added allegations covering the conduct of the defendant district for the purpose of invoking an estoppel upon the defendant from asserting any invalidity in the contract. The third cause of action was in the ordinary form of

quamtum meruit.

Following the trial, upon which the validity of the contract was vigorously attacked upon the ground that it had not been authorized or approved by the board of trustees in a legally called meeting, the trial court made its findings in which these defenses were hot touched upon, but in which it was found that the contract was executed at the time alleged in the complaint; that plaintiff commenced the performance of services under it; prepared and delivered certain plans and specifications for new buildings; expended certain moneys in the performance of this labor and was prevented from completing the contract because of its termination by the trustees. It was then found that the reasonable value of the services rendered by the plaintiff .under the contract was the sum of. $5,000, of which sum $2,000 had already been paid, and judgment was accordingly given for the balance.

• On this appeal the appellant attacks the judgment upon two grounds: First, that the trial court erred in disregarding the uncontradicted evidence of appellant that the reasonable value of his services was $14,348, and, second, that he was entitled to interest upon the amount found due for the period during which payment was withheld. In his reply brief the appellant has for the first time argued that the trial court having found that the contract was executed as alleged in the first cause of action he was entitled to the full sum demanded under that cause of action irrespective of any question of the reasonable value of his services. Although we are not inclined to consider points which are raised for the first time in the final brief, it is sufficient to say that the contract which is the basis of the first cause of action is so indefinite in its terms that we cannot say that the trial court erred in this respect. The contract seems to have been drawn with the intention of employing appellant in two capacities—as an architect to advise the board of trustees and to prepare plans and specifications for new buildings and alterations in the present buildings, and, secondly, as a supervising architect in the construction, completion, and alteration of such buildings. For the services mentioned under the first heading no compensation was fixed, while for the services mentioned under the second heading the appellant’s compensation was fixed at six p.er cent of the total cost of construction and alteration of the buildings. It may be assumed that under the general custom covering the services of architects the fee fixed in the contract would cover the services rendered in the preparation of the plans and specifications. It should be noted, however, that under the contract the appellant was called upon to perform such services “as may be required of him,” and that the fee fixed was to be based upon the total cost of the construction and alteration of the buildings and not upon the estimated cost of that work. Therefore, whether the contract contemplated payment to the appellant for services rendered merely in the preparation of plans and specifications for new buildings or for alterations of present buildings if none of such buildings or alterations was made, was a question which should have been determined by the trial court upon issues properly drawn. Again, if these services were to be paid for on the basis of six per cent of the actual cost of construction and alteration of the buildings, the trial court must determine upon what basis the appellant should be paid for services rendered in the preparation of plans and specifications only. The appellant lays stress upon the