
    No. 7590.
    --- Court of Appeal----Parish of Orleans. ---
    Oscar P. Mohr- vs. Peter A. Fabacher.
    By DinFelspeil, J.
   In this cause plaintiff represents, that he is a qualified and regularly licensed Architect and prao--tioes hia profession in the City of Hew Orleans, That there was verbal contract between the defendant and himself; that as Architect he would prepare plans and specifications for remodeling and supervising the building No. 1000 Canal Street in this City of whioh defendant was lessee, and whioh premises defendant contemplated operating and conducting therein a mot-ion pioture show house or theatre.

The compensation agreed upon was to be 10/» of the total cost; that the work originally designed was to cost twenty-two hundred dollars, but that oweing to alterations, additions and changes whioh were made at the request of defendant or with his consent, and for the purpose of improving, enhancing and beautifying tne said theatre, the total cost of the work totaled C- 3.830.56, That all the work and services required was completed under his direction and supervision as Architect and accepted by defendant. That tue amount due plaintiff as compensation , 10jí of the total was #x :;383.05. He claims an-additional amount of ¿38. for a canopy furnished to the roof of tne building in ques-tion which by error and inadvertance was omitted; also, further claims the sum of Í10. for extra servioes for for laying out, supervising and installing seats in the theatre, which work wa3 done by him at defendant's re--qu83t.

Tx.e defendant in answering, among3t other things, sets up, that plaintiff was engaged both as Architect and Contractor; that plaintiff had agreed and oentrac--ted tc make all the improvements contemplated for the sum of ¿3.400., whici. a..-ount was to cover and include all cost of material, labor and profits of plaintiff, all expenses or charges incidental or in any way conneo-_-ted there with, in other words, § 3.430, under said oon--tract and understanding, that he was to pay and no more. He denies tnat he directed, or authorized, or consented, in any alterations, additions or changes, and if there were any "alterations, additions or changes at an inora -acsd cost, that the same were made or done without his knowledge or consent, and entirely upon tna responsibill -ity of plaintiff herein; that plaintiff advised him tthat the work to be done was not to be in exoess of the amount heretofore stated; denies that the work was ever oomplé--ted, that finally at the time that said picture show was opened it was done under the advise, with the consent and at the direction of the plaintiff, and further if there were any delays it was caused by plaintiff. He admits, t..at he has paid plaintiff the sum of $351.03, but denies that there is $196, due, and denies any am-ount whatsoever being due plaintiff.

The case was tried and the evidence amongst other things has this letter annexed to plaintiff's petition, addressed to defendant, of date 3-37-1916.

The letter reads;-

"Pursuant with your request I have ordered the work at your theatre building, Corner of Canal and Dryades Streets started at onoe.
It being understood that the improvement oontem--plated should be kept within Í3.300., unless other -wise agreed by you.
The work is to be subcontracted, and you are to pay for same as the progress of the work in the opinion of the writer, as Architect, justifies same."
This letter is signed by plaintiff.

Itemized statements of accounts, furnished from time to time showing items agregating '3.430, which inoludes* Architect fee of 10o. The next itemized statement shows ‘.3.177.55, then there were calls for various sums of money commencing with $500.

The next call, after acknowledging receipt for $500., was asking for a check of $1.000., for further dieburee-ments. Tills follow»! with a stat«m»nt showing a total of $3,235.16, than follows an itemized statement showing $3,636.36. Again, th*r« was a further aoknowlsgsmsnt of another ohsck of «1.000. which included the $300., Architect fses. Then follows an itemized statement flowering disbursements $3.481.. Sundry letters asking for further payments are also annexed together with 'the spo-ifications, labor and materials for the building in question, fe have carefully read same, and in acknowledging the receipt of the statements referred to to-gether with repeated demands for monies by plaintiff on defendant, the following letter from plaintiff to defendant speaks for iteelf;-

" Pursuant with your request X have ordered the work at your theatre building, Cornor of Oanal and Dryades Stress, started at once.
It being understood that the improvement contemplated should be kept within ths $3,300"., unless otherwise agreed by you.
The work ia to be auboontraoted and you are to pay for same as the progress of ths work, in ths opinion of ths writer as Architect, justifies.same."
"i.gned by plaintiff.

The testimony in the case, as in all oases of a like kind, is conflicting, one affirmatively wwaaring that he was entitled to the amounts the etateaents called for and the other denying.

The first letter, we oonoeed, from plaintiff to defendant, quoted in this opinion, fixes absolutely the ooet of the building, and ae plaintiff must make his oase certain, in our opinion, he has not done this.

In ths ease of mac Donnell -vs- Dreyfous, 144 La. Supplement, Vol. 81, Mc. 6, p. 383, the Court goes on to say;

"An Arohiteot prepared plane for a building not to exceed a certain amount and whlon plane when prepared and delivered showed that the building would exceed the price and coat atipulated. Suit was instituted and judg -ir.ent was rendered against the Architect".

The C-curt goes on to say;

"Tefendant desired to build an appartment house, employed plaintiff as Architect; that he and plaintiff, in their conversations as to what the house should cost had in mind the Arcadia Apartment House of two floors and a basement which had just been completed at an expense of £17.000., and that it would be well to have additional floors cosing §10.000. for each floor and thus increasing the prioe of the building. Rlaintiff planned a building, the probable cost of whioh, accord ing to his own_estimation would be §61.445. Fh#n the bids were called for it showed an amount far in exoeee. Specifications were furnished to defendant and oommise-ions claimed on the total amount the building would oost".

Th# Court quotes with approval the oase of Williar vs. Nagle, 109 Maryland, p. 75. " An Arohi--tect employed to 'prepare plans and specification* for the building to oost a specified sum oannot recover compensation for his services where th* building could oJr not be erected except ^a oost materially in excess of th* amount specified."

A case in this Court, O. P. Mohr-vs-J. M. Swoop, 13 th. Court of Anneal. p. 94. In that case defendant writes to plaintiff th# following letter,-

" As my former tenant has agreed to leas* th* new building for whioh you are to draw up plans and specifications, I will ask that when you have both settled on plan adopted, that you submit th* same to me for my approval. On* thing I would Impress you with I do not oar* to go over Iixlii.iil8.000,, for ooaplcte building ready for tenent to move in". Signed by defea--dant

In that: case tha Court Bay*:-

"The plaintiff had h did not seem to make any attampt to modify his plans soa as to trine tha oost of tha buil-ding down to $13.000., hut his afforts eaams to have been direotad to induce the tenants to raisa their rant and to convince the defendant that he would be getting a first class building, the coat of which would lessen to felm him by the returns of soma $3.000., which tha adjoining owners would have to make to him for their share of tha cost of the two dividing walls! In this ha failed." The suit was brought, and the Court at page 98," goes on to say,- "But inasmuch as plaintiff was limited to plans for the building not to oost more than $13.000., the rate of his commission can not be based on a lar-ger amount". Citing authorities.

In the case of Maas vs., Fernandez, 2 48 Ann. p. 264, "The Court lays down the dooterine regarding extras or additions to the contract should require proof on tha part of plaintiff for any additional oost in oonneot-ion there with"

In the case of Sarrazin -vs- Adam, 110 La. p. 124, the Court amongst other things decideij-

"The failure to build according to the oontraot and plans and specifications of the builders to the extent shown was an open and active violation of the oontraot".

We are therefore of the opinion, that the first letter of plaintiff to defendant was the oontraot between the parties and both were bound thereby unless altered or agreed to additional cost, and this this plaintiff has failed in proving and therefore his action must fail.

It is therefore, ordered, adjudged and decreed, that the judgment of the lower Court be annulled, avoided and reversed, and there be now judgment in favor of the defendant, dismissing plaintiffs suit at plaintiffs oost in both Courts.  