Hart v. Buckley

[162]

SHAW, J.

Defendant appeals from an order denying his motion for a new trial.

The complaint is in two counts, each upon a distinct claim for money due, aggregating $2,706.80. The first count alleges that, between February 1 and August 30, 1907, plaintiff performed services as architect for the defendant, at his request, in making plans and specifications and in superintending the erection of a building on Market Street in San Francisco, which services were reasonably worth $1,506.80', for which sum defendant is indebted to him, and the same is wholly unpaid. The second count alleges that on February 2, 1907, defendant employed plaintiff as an architect to draw plans and specifications for a building to be erected by defendant on Larkin Street and to superintend the erection thereof, and agreed to pay plaintiff therefor a sum equal to five per centum on the cost of the building; that plaintiff began the performance of said services, and that while he was diligently engaged therein, the defendant, without cause or excuse, terminated his employment and refused to allow him to continue therein, although he was ready and willing to do so, whereby he was damaged in the sum of one thousand two hundred dollars, which remains wholly unpaid.

The answer to the first count denies that any service in superintending the building mentioned was performed except in the excavation of the basement and the erection of the concrete work, and it denies that the service was of any value. It further alleges that the plaintiff was negligent in the performance of said services, and that because of said neglect of the plaintiff the defendant, on August 30, 1907, discharged him. The answer to the second count denies the making of the agreement alleged, the performance of any services thereunder, the wrongful discharge, and the damages. By the way of set-off to both counts, it is alleged that plaintiff was employed by defendant to draw the plans and specifications for the said building on Market Street and to superintend the erection thereof, and that he undertook to use due care and skill therein, that the work was carelessly done by the contractor “in an unworkmanlike manner, and not in conformity with said specifications, ’ ’ that the plaintiff negligently “failed to properly inspect or test said work,” and negligently issued certificates as architect