Salfield v. Cohn

This is an appeal from a judgment in favor of plaintiff and from an order denying a new trial.

The only question involved is the question as to whether the evidence sustains the findings and judgment of the court.

Mr. Sweeney (for Appellant): That is the only question.

The Court: This was an action brought by an architect to recover certain sums alleged to be due for a number of plans which he had drawn for the defendant, who was the owner of a lot upon which, apparently, he desired to build a house. Upon the trial of the case the two chief witnesses presented were the plaintiff and the defendant; and the question to which their testimony was directed was as to the oral agreements which had been made between them with reference to these several plans, and the understandings at the time this, that, or the other plan was found to be insufficient or impracticable for the uses of the defendant. The testimony is radically conflicting as to what the agreement was between the parties. The court apparently saw fit to adopt the version which the plaintiff gave of the understanding between the parties, and based its findings and judgment upon its acceptance of the plaintiff's testimony. Will it not be conceded by you that the plaintiff's testimony went to the extent of supporting his claim for the amount which he claimed to be due in case the court believed it?

Mr. Sweeney: Yes, in a way. If the court had believed his testimony, it should have given him a great many thousand dollars more than it did; but it is the contention of the defendant that he always told the plaintiff that he wanted plans for a twenty-five thousand dollar building or a twenty-five thousand five hundred dollar building. There is absolutely no conflict upon that pivotal point throughout the entire case.

The Court: We think that the record discloses that the plaintiff testified that at the time these several plans were drawn and examined there were various directions given him by the defendant as to the kind of plans he wished, and as to the cost of the building which was to be constructed. We recall, for example, that when the second set of plans was prepared — which showed a building worth something like twenty-six thousand dollars or twenty-seven thousand dollars — the defendant thereupon directed the plaintiff to make certain additions and changes in the plans, which brought the cost up to something like thirty-five thousand dollars, and that he prepared a set of plans in accordance with the suggestions of the defendant; and that after they were prepared the defendant found that he was unable to borrow the money to erect the building according to this plan, and thereupon other plans were directed to be drawn.

Mr. Sweeney: Yes.

The Court: In other words, isn't this the situation: that repeated plans were drawn by the plaintiff at the request of the defendant, and repeatedly modified because the defendant did not feel that he had money enough to meet the requirements of the plans as prepared by the plaintiff?

Mr. Sweeney: Yes.

The Court: The plans were prepared in the first instance at the suggestion of the defendant?

Mr. Sweeney: Yes.

The Court: And they were modified from time to time at the suggestion of the defendant?

Mr. Sweeney: Yes.

The Court: And certain features of the building were eliminated, so as to bring the cost within the means of the defendant?

Mr. Sweeney: Yes; but the first set of plans were a fifty thousand dollars, the second thirty-five thousand dollars, and the third was, I think, the nineteen thousand dollars, which set did not cover the entire lot, and the fourth set was the twenty-five thousand five hundred dollars, which is the set of plans which the defendant should be mulcted for and the only set.

The Court: That, of course, is only upon the theory that the court did not in all respects believe the testimony of the plaintiff, because the testimony of the plaintiff as we read it is to the effect that in the preparation of all of these plans he was acting under the direction of the defendant, and that he was changing his plans from time to time to meet the latter's views.

Mr. Sweeney: If the court gets that idea out of the case, well and good.

The Court: We are satisfied from the facts of the case and the statement of the facts appearing upon this discussion, and for the reasons stated therein, that the judgment and order appealed from should be affirmed, and that will be the order.