Williar v. Nagle , 113 Md. 614 ( 1910 )

This is the second time this case has been before us, the former decision being reported in 109 Md. 75. We then held that if an architect is employed to prepare plans and specifications for a building which is not to cost more than a specified amount, he is not entitled to recover compensation for them unless the building can be constructed, in accordance with them, at a cost which is not greater than or reasonably near that amount, and that ordinarily whether it can be so constructed is a question for the jury. The judgment was reversed because of error in one of the plaintiffs' prayers, and the plaintiffs having obtained a verdict at the second trial, the defendant has again appealed to this Court. The case now presents questions not passed on before.

On this appeal the argument has been confined to the plaintiffs' second prayer which the appellant contends was erroneous, and that the prayers granted at his instance did not relieve it of the objections. We will ask the Reporter to include this and the defendant's granted prayers in his report of the case. That prayer of the plaintiffs does not seem to us to be objectionable, especially as it was marked granted in connection with the defendant's prayers. The theory of the plaintiffs, as presented by it, was that after they had prepared plans for a six-story building which would not have exceeded the cost to which they were limited by the defendant, and after those plans were accepted by the defendant as satisfactory, the defendant concluded to have an eight-story building erected, and the plaintiffs told him that such a building, of the same characterof construction as that shown by the designs for the six-story building, could be erected for $90,000; that the plaintiffs were then directed by the defendant to proceed with the working drawings for an eight-story building of that character, but while the plans and working drawings were being prepared the defendant from time to time suggested modifications and changes of materials and construction of the building which increased the cost beyond $90,000 and made it substantially a building of different character, although a building of the character originally designed by them could have been built for that sum.

The prayer cannot be objected to on the mere ground that there was no legally sufficient evidence that there were such modifications and changes by the defendant as caused the increased cost, because there was no special exception to it, and hence such objection cannot be made in this Court, under our well-established practice and rules. But if that were not so, there is undoubtedly some evidence that material change and modifications were made, which did cause the increased cost. Mr. Nagle, one of the plaintiffs, specified a number of them — some of which were on the exterior of the building, but more in the interior, such as making the building fireproof throughout, tile work, electric wiring, change of the woodwork, adding electric dumbwaiters, from the basement to the upper floors and costing $3,400 a pair, a cafe and other things. It will not do to say that no one would erect a building for such purposes as this was intended for without making it fireproof, without a cafe, etc., for Mr. Nagle's testimony is to the effect that it was to be so constructed, as originally planned. Moreover, the evidence shows that at least one other building of the kind in Baltimore, with which the proposed one was compared, is not fireproof, and the evidence does not show that it had a cafe.

Nor is the position of the appellant tenable that the plans for the first building which were offered in evidence show that there were no detailed drawings or specifications, and hence it cannot be said that changes and modifications were made. That might have been a good argument before the jury, but if Mr. Nagle's testimony is to be accepted, as it must be in considering this point, and the jury evidently believed it, judging from the verdict, the parties understood the character of the building proposed to be built, and the prayers submitted the question whether the plans were acceptable and accepted by the defendant. If such plans were acceptable and accepted for a six-story building, the parties might also have agreed that those for the same character of construction could be made for an eight-story building. It may be improbable that an owner would make such an agreement without knowing the exact character of the materials and construction to be used, but that was for the jury to decide, and not for us in construing the prayers. Mr. Nagle testified positively that a six-story building could have been built, according to the plans furnished by them, for the price named, and also that an eight-story building could have been built of the same character for $90,000. No question of fraud or bad faith was raised at the trial below, and it cannot be assumed that what Mr. Nagle said as to the cost of the building originally proposed is not true. It may be that such a building as the defendant intended could not have been built for the price named, but if he left the details entirely to Nagle, and Nagle was acting in good faith, the appellant cannot now escape payment for his services because he expected something different from what Nagle understood and had in view, unless the latter did or said something which deceived or misled him, which was not contended below, so far as the record shows.

The defendant said that Nagle did not tell him what kind of wood was to be used, and that he did not remember that Nagle told him that the six-story building was to be fireproof, although he understood it was to be. He said that, "Mr. Nagle submitted many plans, there might have been half a dozen, I do not mean absolute plans, but rough sketches." On cross-examination he said, "on January 23rd, Mr. Nagle presented final blue prints showing an elevation for the eight-story building, and stated that a building of that character could be put up for $83,000 complete, ready for occupancy, but that it might cost $7,000 more, and that he was then told to go ahead and finish his plans." It was after that that the changes were made according to Nagle, although the defendant claims that the changes which were afterwards made were inconsiderable. However imperfect the plans were, they seem to have been sufficient to have satisfied the appellant if the building could be erected within the cost named, and moreover some of those which were submitted had been mislaid before the trial and hence were not in evidence. So without discussing that contention of the appellant further, we are of the opinion not only that the prayer cannot now be objected to on the ground that there were no modifications and changes of materials and construction of the building, which increased its cost beyond the sum named, but if that were not so we could not hold that there was no evidence of such modifications and changes. The fact that the designs which were submitted (even if those used at the hearing were all, and apparently they were not) did not give the details or include working drawings does not enable the appellant to avoid the effect of there being no special exception to the prayer, for undoubtedly an owner and an architect can agree that plans can be prepared for a building described in a general way without being altogether specific as to the character of materials and construction. Then if an elevation, floor plan and "typical" plan are submitted and explained by the architect, who is instructed to proceed with them as acceptable and being accepted, he is not required or expected to provide for the very best material and very best construction, unless it is so understood between them. Of course the architect must act in good faith and will not be permitted to impose on the owner. He must provide for a substantial building but not necessarily the very best.

Nor do we think another position taken by the appellant can avail him. It is that even if it be true that, after the plans showing the character of materials and construction had been agreed upon, the appellant suggested changes and modifications in them, still the appellant was entitled to assume that such as he suggested, and the architect adopted, would not make the cost of the building exceed the price agreed upon, unless the architect notified him that such would be the case — "unless, perhaps, the changes or modifications are such that any reasonable man must know that they will increase the cost." The latter qualification of the general statement as thus made by the appellant is very applicable to this case, and there can be no doubt that when the evidence is such as there is in this record such qualification must be made to the general rule contended for by the appellant, if that be conceded to be a correct rule of law, which we need not discuss. If that rule be adopted without a qualification of that kind, it would work great hardship and injustice upon honest architects, and furnish dishonest owners of properties means of escaping obligations to pay for services rendered in the preparation of plans. It not infrequently happens that one contemplating improvements, provided they can be made for about a certain amount, upon receiving plans and information from an architect which show the character of building that can be built for such sum, determines to have them prepared for a more elaborate, more substantial or more convenient building, and then, when they are made, asks for bids on those plans. In such a case it would be a great injustice to the architect if he must be deprived of all compensation for his work simply because he did not say to the owner that such changes would cause the building to cost more than the original sum intended, although the owner could be presumed to know it. Architects and other experts are supposed to know more in their particular lines than those who are not so engaged, but they are not supposed to have all the intelligence that belongs to mankind, and everyone is expected to use as much of it as an ordinary man is presumed to have. In speaking thus, we do not mean in any way to reflect upon the honesty or intelligence of the appellant. On the contrary his evidence is to the effect that he would not have made such changes as the plaintiffs' claim were made after the plans were accepted, and he does not pretend to be so ignorant as to suppose that such changes could have been made without materially adding to the cost of the building. But the conflict between them in their testimony was for the jury and not for us to determine. It may not be necessary, but we will recall some of the facts which would tend to show that the defendant must have known that such changes as the plaintiffs claim were made would materially increase the cost.

The case was tried by both sides on the theory that the eight-story building, as finally designed, could not be erected for less than $125,000 — being $35,000 more than the original limit. Neither the plaintiffs nor the defendant contended that it could be completed for less. If it be conceded that there was such difference, as it was, any reasonably intelligent man must know that such changes would involve cost, and large costs. If it be true, as the plaintiffs contended, that one of the changes was making the building fire proof throughout and that it was not originally so designed or intended, or if it be true that electric dumbwaiters were added and that they would cost $3,400 a pair, which is not denied in the testimony, surely the defendant, or any other man of reasonable intelligence must have known that such changes would greatly add to the cost of the building. It is not necessary to be an architect, or an expert of any kind, to know that a practically plain building "of brick, with a few simple band courses carried through horizontally," which the original design represented according to Nagle, would not cost as much as one ornamented with iron balconies and having "decorated vertical bay of lime stone, and semigothic," etc. So we might refer to other changes and modifications which, if made, would necessarily rapidly run into money, and which the defendant ought to have known would have increased the cost considerably beyond the original estimate. We do not overlook the fact that the defendant denies that such changes were made, but as we have said, that was for the jury — whether the modifications and changes of materials and construction were made, whether they increased the cost of the building beyond the sum of $90,000 and whether the building as originally designed could have been built for that sum were submitted to the jury by this prayer. The defendant not only did not, but doubtless would not contend, as we have intimated, that he did not know that such changes as the plaintiff's claim were made would greatly increase the cost of the building. That was not the controversy between the parties as presented by the record, but it was whether there were such changes and modifications in the building as were originally planned and agreed upon. If the jury found there were, together with the other necessary facts, then the plaintiffs were entitled to recover; if on the other hand they found there were not, then the defendant was entitled to a verdict.

So although the prayer might have presented the real question in the case more clearly, yet when it is considered in connection with those granted for the defendant and with what the record shows was in controversy, as well as some conceded facts mentioned by us, we are of the opinion there was no reversible error in granting it. As no objections to the rulings on the other prayers were pointed out, we will affirm the judgment.

Judgment affirmed, the appellant to pay the costs, above andbelow.