Kistner v. Pomeroy

KNIGHT, J.

Plaintiff, a licensed architect, brought this action to recover damages for an alleged breach of contract of employment. A general demurrer to the second amended complaint was sustained with leave to amend, but plaintiff having declined to amend, judgment of dismissal was entered, from which judgment plaintiff appealed.

The essential averments of the complaint are: That on April 15, 1919, defendants, constituting the board of trustees of Anaheim School District in Orange County, entered into an agreement with plaintiff whereby the latter was employed “as architect for said School District in the construction of two new school buildings, ” at an agreed compensation of six per cent of the cost of the construction of said buildings, the estimated cost of which was one hundred thousand dollars. “That pursuant to said contract of employment said plaintiff entered upon the performance of his duties as architect and prepared preliminary drawings for both of said school buildings, consisting of floor plans and elevations. That said plaintiff conferred with said members of said Board of Trustees from time to time regarding said plans and the buildings to be constructed. That after said preliminary drawings for said buildings were completed, said plaintiff proceeded with the preparations of final drawings, consisting of floor plans and elevations and details of the school building to be constructed on the site known as Central School site. That the plans for said building provided for ten classrooms, kindergarten and teachers’ room, and prin

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cipal’s office. That said plaintiff continued in the performance of his duties as architect until the 15th of August, 1919, and expended large sums of money in the preparation of said plans; that said plans had been practically completed and were ready for submission for approval by the county superintendent of schools of said Orange County. That on said August 15, 1919, plaintiff received notice3 from said Board of Trustees that he had been discharged as architect.” The prayer of the complaint was that plaintiff be given judgment in the sum of four thousand dollars.

Section 1543 of the Political Code provides that “It is the duty, of the superintendent of schools of each county: ■ , , Twelfth—Except in incorporated cities having Boards of Education, to pass upon and approve or reject all plans for schoolhouses, and to enable him to do so all Boards of Trustees, before adopting any plans for school buildings must submit the same to the County Superintendent of Schools for his approval”; and in view of said provision defendants contend “that before plaintiff can recover in this action, he must prove that his plans for the school buildings in question had been submitted to the County Superintendent of Schools of Orange County, in which County the school district involved herein is located, and that the said County Superintendent of Schools has approved the same. And further that if such facts are indispensable evidence before recovery can be had, it would follow that the complaint should allege that plaintiff’s plans had been submitted to and approved by the said County Superintendent of Schools before any liability would attach to the Board of Trustees of said school district. The said amended complaint contains no such allegation and, therefore, does not state a cause of action against said Board of Trustees.”