Opinion
April 19, 1929.
April 29, 1929.
Architect — Contract for designing and superintending alterations — Discharge before full performance — Claim for services — Indebitatus assumpsit.
In an action of assumpsit by an architect to recover the value of his services, it appeared that the defendant employed him to make plans for the alteration of a building. Subsequently the defendant contracted with the plaintiff to design and superintend the alterations, and agreed to pay him a percentage based upon the cost of the work. Upon being discharged before the work was completed, the plaintiff presented a claim for services which exceeded the contract price.
In the light of such testimony the case was for the jury and a verdict for the plaintiff will be sustained. The issues between the parties were whether the plaintiff had been wrongfully discharged and if so what was the fair value of the services which he had rendered.
Where one party to a contract is prevented by the other party from fully performing his undertaking, he may recover the value of his services in indebitatus assumpsit and thecontract price is not necessarily the measure of damages; the fair value of services may be shown by any relevant evidence of such value.
Appeal No. 55, April T., 1929, by defendant from decree and order of C.P., Allegheny County, April T., 1928, No. 2574, in the case of Charles F. Knapp v. Gaston Teyssier.
Before TREXLER, KELLER, LINN, GAWTHROP, CUNNINGHAM and BALDRIGE, JJ. Affirmed.
Indebitatus assumpsit to recover value of personal services. Before MARSHALL, J.
The facts are stated in the opinion of the court below.
This case was tried in the county court. Plaintiff, a building contractor, was employed by defendant to draft certain floor plans and to make calculations of floor loads and space in a building which defendant was about to remodel. There was no agreement as to the rate of compensation. About the time the plans and calculations were delivered to defendant, the parties agreed that plaintiff should design and superintend such alterations as defendant might order, for a compensation of fifteen per cent. of the cost of such work, it being expressly agreed that such percentage should include compensation for plaintiff's services rendered up to that time.
Plaintiff alleged that during the progress of the work of remodeling, he was discharged without cause, and sued to recover the value of all services rendered previous to the date of the discharge. Defendant did not deny the employment, but controverted only the fact of discharge without cause, and the value of plaintiff's services. There were but two issues submitted to the jury: (a) whether the discharge was wrongful, and if so, (b) what was the fair value of plaintiff's services to the date of discharge. The jury returned a verdict for plaintiff, and defendant now seeks to appeal from the judgment on that verdict.
During the course of the trial, plaintiff was allowed to amend his declaration, in order to conform it to the proof adduced. To this amendment, defendant pleaded surprise and moved to continue the case. He now assigns as error the refusal of his motion to continue.
A reading of the testimony and pleadings discloses that the amendment simply stated the terms of the employment in conformity with defendant's own answer and with the testimony of both plaintiff and defendant on that score. Defendant was therefore not surprised in a legal sense. But even had he been, the propriety of allowing a continuance upon a plea of surprise is always within the discretion of the trial judge: Roebling's Sons Co. v. Am. A. C. Co., 231 Pa. 268; Vansciver v. Churchill, 35 Pa. Super. 215. As no abuse of that discretion has been shown, we conclude that the action of the trial judge was proper.
The verdict of the jury is a finding that in discharging plaintiff, defendant had breached the agreement between the parties. Since one prevented by the owner from completing work which he contracted to perform may recover the value of his labor in indebitatus assumpsit, even though it exceed the contract price (Philadelphia v. Tripple, 230 Pa. 480; Witten v. Stout, Executor, 284 Pa. 410, 412), the only question remaining is whether plaintiff produced sufficient evidence as to the value of his services to warrant its submission to the jury.
Plaintiff claimed the sum of $1,200 as the value of his services in preparing plans and making calculations, under the first employment, and the sum of $490.05 as the value of his services in designing and supervising the alterations under the later employment, up to the moment of his discharge. The verdict was for the total of these amounts, less a credit of $800 paid on account.
The disturbing factor in this verdict is to be found in the fact that $490.05 is exactly fifteen per cent. of the cost of the alterations installed prior to plaintiff's discharge. Defendant contends that since the agreement was that the rate of fifteen per cent. should include all services under both employments, plaintiff should have been limited in his recovery to the one item of fifteen per cent. This contention overlooks the fact that the present action is not to recover the contract price, but the value of services rendered under a contract which defendant would not allow plaintiff to perform in full. Had plaintiff been permitted to design and supervise the alterations in their entirety, his entire compensation would have been but fifteen per cent. of the cost of the alterations. The value of his services under the first employment would have been amortized, in a sense, in the rate of fifteen per cent. But full performance having been prevented by defendant, the latter must be prepared to compensate for the fair value of the benefits conferred, without any reference to the contract price: Witten v. Stout, Executor, supra.
In suing to recover $490.05 for the designs and superintendence under the later employment, plaintiff did not declare upon the contract to pay fifteen per cent. of cost. True, $490.05 is fifteen per cent. of cost, but the allegation in the statement of claim is that the work was fairly and reasonably worth $490.05, and the proof offered by plaintiff was to the same effect.
It is contended by defendant that plaintiff did not produce sufficient evidence of the value of his various services. As to the item of $490.05, he offered the testimony of an experienced architect, who stated he was familiar with charges made by builders for supervising and remodeling of buildings, and preparing plans for the alterations, and that the fair and reasonable charge for such work was fifteen per cent. of cost. Although not asked specifically as to the usual and customary charge, he stated: "I do know that they (builders) do charge fifteen per cent."
As to the item of $1,200 for preparing plans and making calculations of floor loads, cubical space, etc., on which work the evidence showed plaintiff had been engaged from July 5th to September 10th, the same architect, after inspecting the plans, testified that $2,500 was a fair and reasonable charge for the services rendered. Plaintiff himself, although admitting he was not familiar with the charges made by others, testified that $1,200 was a fair and reasonable charge, and that he had so informed the defendant when delivering the completed plans to the latter, prior to the second employment.
The testimony as to the value, while not voluminous, was, we think, sufficient to sustain the verdict especially as the architect called by plaintiff, testified that from ten to fifteen per cent. was the fair and ordinary price for supervision, and that if a contractor should also furnish plans, he would make an additional charge. We are of opinion that the case was fairly submitted to the jury and that their verdict should be sustained. Error assigned, among others, was the order of the court.
F.C. McGirr, and with him John P. Egan, for appellant. — Where the pleadings are amended the surprised party is entitled to a continuance: 2 Troubat Haly's Practice, page 490, section 2206; Alexander v. Hoffman, 5 W. S. 382.
Ernest Frey, and with him R.A. Balph and James Balph, for appellee. — Where the plaintiff sues on quantum meriut for his services he is not limited to the contract price: Witten v. Stout, 284 Pa. 410, 412; Philadelphia v. Tripple, 230 Pa. 480.
Argued April 19, 1929.
The judgment in this case is affirmed on the opinion of the learned judge of the lower court.