Mood v. Methodist Episcopal Church South , 289 S.W. 461 ( 1926 )

On Motion for Rehearing.

Further consideration has produced the conclusion that appellant is not precluded from a recovery on his claim for extras, directed by appellees to conform to changes in the plans made during the construction of the building, which changes were made by appellees’ architect to remedy supposed defects in the original specifications. The rule that the contractors impliedly warranted that they could build the house according to the plans does not govern this situation.

Where, during the progress of the work, the architect employed by the owner decides that the plans are defective and changes the plans and the owner directs the builder to conform to the changed plans, the owner is liable for the extra work thus occasioned. This on the theory that, the owner having changed the plans, he is' responsible for the increased cost. 9 C. J. § 180, p. 840, section 181, p. 841.

The decision that the testimony did not raise the issue of mutual abandonment by conduct is adhered to. Additional authorities supporting this view are Garver v. Daubenspeck, 22 Ind. 238; Cooke v. Murphy, 70 Ill. 96; Hills v. McMunn, 232 Ill. 488, 83 N. E. 963; Boyden v. Hill, 198 Mass. 477, 85 N. E. 413; Ross v. Tabor, 53 Cal. App. 605, 200 P. 971.

To constitute abandonment of contract by conduct, the acts relied on must be positive, unequivocal, and inconsistent with the existence of the contract. The one under investigation provided for changes; the deviations relied on were agreed to. At the time no' statement was made by the contractors indicating an intention not to be further bound by the original contract, or, any claim that by reason of the altered plans the contract was abandoned and that they would claim' compensation for the reasonable value of, their services.

If there was abandonment as alleged the parties knew it, when it occurred, and would have then raised the question. To sustain the contention under discussion would be a patent violation of the rule. The motions for rehearing are overruled.

The cause is remanded for trial upon the issue of appellant’s claim for quantum meruit of his services in making the changes and alterations pleaded, except that due to the change in the pulpit.