Opinion
No. 38122.
November 26, 1951.
1. Contracts — architect's plans — payment to be based on lowest bid for construction — abandonment.
Where payment is to be made upon a condition under the control of the promisor, an action may be brought within a reasonable time, so that where an architect had drawn plans for a building to be erected by the promisor, the architect to be paid 3% of the lowest and best contractor's bid, but the promisor later declined to accept any bid and abandoned the project, the architect was entitled to bring his action within a reasonable time thereafter and to recover 3% calculated on the lowest bid less any payments theretofore made to him.
Headnote as approved by Alexander, J.
APPEAL from the circuit court of Hinds County; M.M. McGOWAN, Judge.
H. Chalmers Alexander, for appellant.
Most certainly Mr. Lutrick was awarded judgment below on basis of a quantum meruit. For he could not recover legally under the common counts in assumpsit. 2 Rul. Cas. Law under Assumpsit, p. 745, and 6 Rul. Cas. Law under Contracts, p. 589.
At common law in an action on express contract the plaintiff cannot recover on proof of an implied contract. Where plaintiff declared on an express contract, proof of reasonable value was not permissible. Where the action is to recover for work and materials alleged to have been furnished under a contract which is not denied, the only issue made being as to the contract price agreed on, then it was error to admit evidence of reasonable value. 13 C.J., par. 908(b), Contracts. Only where plaintiff's pleading does not disclose whether the contract was express or implied, may he recover on a quantum meruit. 13 C.J., par. 908(b), p. 749.
Where plaintiff sues on a contract and also on a quantum meruit in two separate counts, and defendant admits the contract on the trial, then it is error to submit quantum meruit to the jury. U.S. Health Ins. Co. v. Savage, 185 Ala. 232, 64 So. 340; Green v. So. State Lbr. Co., 163 Ala. 511, 50 So. 917; Hirote v. Brigman, 44 Fla. 569, 33 So. 917; Shaw v. Noble, 15 La. Ann. 305; Weir v. Pannington, 11 Ark. 745; Drake v. Surget, 36 Miss. 489; Dalgren v. New Orleans Land Co., 162 La. 891, 111 So. 271.
Where plaintiff declared on a special agreement exhibited by him, he must prove it as laid; and if there be a special agreement, then he cannot recover on the common counts of quantum meruit. Fowler v. Austin, 1 How. 156, 25 Am. Dec. 701; Morrison v. Ives, 4 Sm. M. 652. And see the well known case of Timberlake v. Thayer, 71 Miss. 279, 14 So. 446, 24 L.R.A. 231. See also Upton v. Adcock, 145 Miss. 372, 110 So. 774.
In McPherson v. Gullett Gin Co., 134 Miss. 771, 100 So. (1924), it was held that: "In case of private contracts setting forth the rights and duties of the parties thereto, there is no implied duty owed to either party by the other, and their rights and liabilities must be measured by the contract."
Parties cannot abandon a written contract and resort to quantum meruit. "So long as a special contract exists in force, plaintiff cannot resort to the common counts, unless he fail altogether in proving the special contract and then it must be such a transaction as would entitle him to recover on the money counts, supposing that there had been no special contract; but if there be any proof of a special contract, he cannot recover. Citing 4 Phil. Ev. 108 Am. Ed. 1839. If the contract be in force, it cannot be abandoned on the trial." Carter v. Collins, 151 Miss. 1, 117 So. 336, 339.
Time, as concerned: "In order that time be regarded as of the essence of the contract, the parties must fix upon a time of performance, and thereby indicate that the time of performance is regarded as important or its importance must result from the circumstances of the agreement. Tyler v. McCardle, 9 S. M. 240; Liddell v. Sims, 9 S. M. 596.
Time is generally considered as not in any way a matter of essence of contract, but it is so when expressly so treated by the parties, or if it necessarily follows from the nature and circumstances of the agreement. Jones v. Loggins, 37 Miss. 546; Runnels v. Jackson, 1 How. 358. Henry Edmonds, for appellee.
I. The situation which we find here is one in which the appellee, having performed his contract entirely, is sought to be defeated of the fruits of his labor because of the failure to happen of a contingency which was at the same time the basis of the calculation of his compensation but the happening of which was wholly in the power of the appellant.
In 12 Am. Jur. p. 885, Sec. 329, we find this statement of a rule of law which has grown as a matter of course out of human experience into such fruition as to have been but rarely brought into question: "Prevention — One who prevents or makes impossible the performance or happening of a condition precedent upon which his liability by the terms of a contract is made to depend cannot avail himself of its nonperformance. In other words, he who prevents a thing from being done shall never be permitted to avail himself of the nonperformance which he himself has occasioned."
It is fundamental in the law that one requesting the personal services of another in the production of any commodity is liable for such service whether the commodity is used or not. And on the specific question see Nolen v. Perloff, a Louisiana case, 119 So. 754, where the Court held specifically that one requesting an architect to prepare plans and specifications is liable therefor whether they are used or not. On the same score in 6 C.J.S. 318 we find a principle stated that an architect may recover on an implied contract when the work is abandoned, rendering the original contract inoperative, or that he may sue in the alternative on his original contract and for the reasonable value of the services. See also 20 A.L.R. 1358.
It is thus apparent that when the appellant requested the appellee to prepare plans and specifications, receive bids, etc., for his commercial building his liability to the appellee was an absolute one, although the exact amount of the appellee's compensation was not then arrived at or liquidated. It therefore follows, as night follows day, that at the expiration of a reasonable time appellee was entitled to his compensation.
II. Appellant says, however, that upon a technicality of improper joinder appellee has effectively and forever cut himself off from a recovery even if his suit was not prematurely brought.
It should be at once apparent to this Court that in this case that portion of the subject matter of the contract in suit which deals with compensation is not completely covered. In other words, the parties in the drafting of this contract left something to be determined. It is familiar law that when there is a promise either express or implied to pay for service rendered and the amount of the compensation is not agreed upon, the law will imply an obligation to pay on a quantum meruit. Hickman v. Slough, 187 Miss. 525, 193 So. 443. This implication of law does not arise to supersede or take the place of an express contract covering the same subject matter but simply plugs a hole which for one reason or another has been left in the formal contract and which has rendered it incapable of speaking the intention of the parties as to that particular feature.
This being true it is quite obvious that what the Court has before it is not a suit in one breath on a contract and in the next breath on quantum meruit, but actually is a suit on a contract, a part of which by implication of law calls for reimbursement of the appellee for his services on a reasonable basis.
In construing a contract all terms of the agreement and surrounding circumstances must be considered and the contract given a fair and reasonable construction, Granberry v. Mortgage Bond Trust Co., 159 Miss. 46, 132 So. 334, and an interpretation which gives a reasonable, lawful and effective meaning to all manifestations of the contract is to be preferred to an interpretation which leaves a part of such manifestations unreasonable, unlawful or of no effect. Williams v. Batson, 186 Miss. 248, 187 So. 236; Seale-Lily Ice Cream Co. v. Buck, 195 Miss. 440, 16 So.2d 213. Also a construction of a contract which would make it unfair or unjust is to be avoided unless the terms are unambiguous and express. McCain v. Lamar Life Ins. Co., 178 Miss. 474, 172 So. 495.
Certainly in the case at bar, when the appellee has performed every act which anyone could reasonably expect of him under his contract, it would be unfair and unjust to deprive him of his reasonable compensation, and it is submitted that by no stretch of the imagination can this contract be said to be "unambiguous and express" insofar as appellee's compensation is concerned.
Appellant entered into an agreement with appellee, doing business as the Lutrick Plans Service, whereby the latter agreed to furnish plans and specifications for the erecting of a commercial building to be used by appellant. Under this agreement the appellant paid a retainer fee of one hundred dollars, which was to be credited upon a total charge of 3% of the lowest and best contractor's bid received for the actual construction of the building.
There is no contention that the plans and specifications were not drawn in compliance with the agreement. The lowest and best bid received for construction under the specifications was $23,276. There was a further credit of two hundred dollars paid for appellant's account. Appellant did not let the contract at the bid stated or at any bid, and after the plans had been completed and delivered, and a year had elapsed, during which time appellee made repeated demand for payment without success, suit was brought by appellee for the balance alleged to be due under the agreement. This amount was $398.28 which represents 3% of the lowest bid submitted, less credits totaling three hundred dollars.
Pleas by the defendant interpose defenses based upon the alleged conditional aspect of the contract which contemplated that the architect's fees were to be based upon the cost of construction by a third person and that the defendant had not undertaken to build and had not accepted any of the bids submitted, and that, therefore, there was no definite basis for computing the fees upon a contract that had not been let. Also, that the appellant was not financially able to arrange for the proposed construction. A second plea raised the point that the declaration was in two counts, the first in contract and the second in a common count in assumpsit upon the basis of quantum meruit. See 6 C.J.S., Architects, Sec. 20 (a).
The alleged inconsistency between the two counts was not pressed by motion or otherwise and the cause proceeded to trial upon the declaration and answer or plea. There was a judgment for the plaintiff, appellee, in the county court for $398.28, with legal interest after September 29, 1949, the approximate date on which suit was filed. From a judgment of affirmance by the circuit court, this appeal is taken.
Appellant cites, for support of his contention, Upton v. Adcock, 145 Miss. 372, 110 So. 774. In the cited case, payment for personal services was agreed to be paid upon the basis of one cent a pound for cotton grown during a named year. Suit was brought before expiration of the year. It was decided only that such action was premature and the case was dismissed without prejudice.
This appeal is properly to be decided upon the principle illustrated in Hughes v. McEwen, 112 Miss. 35, 72 So. 848, L.R.A. 1917B, 1048, where it was held that where payment is to be made upon a condition under the control of the promisor, an action may be brought within a reasonable time. See 6 C.J.S., Architects, Sec. 20(b); 12 Am. Jur., Contracts, Section 329.
The issues of reasonable time and of quantum of recovery were submitted for the decision of the trial judge without a jury and his findings are supported by the testimony.
Affirmed.
Hall, J., took no part in the decision of this case.