
    Albert W. Fuller and William A. Wheeler, Resp'ts, v. Catharine E. Craig, App'lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 1, 1887.)
    
    Contract—Prospective profits—When not entitled to.
    The defendant employed the plaintiffs, who were architects to prepare- and complete for her preliminary sketches for a dwelling house, wuich they did and were allowed compensation for. Following the performance, and acceptance of this service there was a conversation in which defendant talked with plaintiffs about making plans and drawings with accurate and definite specifications which were to be considered before any final and binding agreement could be entered into between the parties, containing the necessary details for an absolute, definite and specific agreement, for the employment of plaintiffs, to superintend the building, could be made. Before any thing was done on said plans defendant discharged the plaintiffs. Held, that the plaintiffs were not entitled to prospective damages- or estimated profits. That the proof showed that the subject was yet inchoate- and nothing was yet absolutely certain in detail. Learned, J. dissenting.
    
      Mead & Hatt, for resp’ts; L. & J. M. Lawson, for app’lt.
   Bockes, J.

The action was brought to recover for work, labor and services performed by the plaintiffs for defendant, at her request, as architects: also for damages for an alleged breach of contract made by them with her, in their profession as architects, by which she employed them to prepare and complete plans, details and specifications for a dwelling house to be erected for her, and to obtain estimates and let the contract therefor and superintend its erection and completion, at an agreed price of five per cent upon its estimated cost. The referee, to whom the case was referred to hear and determine, found that the defendant employed the plaintiffs to prepare and complete for her preliminary studies or sketches for a dwelling house, and that they did compíete and furnish such studies and sketches to ner; and further that those services were of the value of $1G7.50. Pausing here, it may be stated that we are of the opinion that the evidence fully sustains these conclusions of the referee, and we find no reason for disturbing the judgment as regards this branch of the case. True, the appellant’s counsel urges that these findings are not within the allegations of the complaint, but they áre the result of the matters stated therein, and if not strictly in accordance with them in all respects, an amendment of the pleading should now be permitted to meet and answer the ends of justice and right.

The difficulty in the case grows out of the other findings of the referee on which an additional sum of $250 as damages was included in the recovery. The referee finds that following the performance and acceptance of the services above considered, the parties entered into an agreement whereby the defendant engaged the plaintiffs to prepare and complete for her, plans, details and specifications for a house to foe erected for her, and to obtain estimates therefor and to let the contracts for the same; and that two days thereafter she elected to, and did terminate the contract and discharged the plaintiffs from her employment. Prospective damages or rather the estimated profits to the plaintiffs because of the contract were allowed them to the extent of $250. How, there is no finding as to the amount or sum agreed to be paid to the plaintiffs for the performance by them of this alleged contract; nor indeed does it appear either from the findings of the referee or the proofs in the case that anything whatever was done by the plaintiffs under or in performance of the contract, nor is there to be found in the record any specific and exact data from which the amount or sum to be paid the plaintiffs can with entire accuracy and certainty be' determined. There is consequently nothing in the record on which to base the allowance of $250 as prospective damages to the plaintiffs because of the contract and its alleged breach, or as net profits to them had they been permitted to perform the services in contemplation. In point of fact the evidence fails to show a perfected contract between the parties, complete in detail as to its material parts. The conversation between the parties, to which the referee has given force and made effectual as showing a complete and binding agreement, plainly contemplated many details not yet settled on and determined. Plans and drawings with accurate and definite specifications, were evidently yet to be made and considered before any final and binding agreement between the plaintiffs as architects, and the defendant could well be entered into, containing the necessary details for an absolute, definite and specific agreement of the nature and import of that here relied upon for a recovery. The proof shows that the subject was yet inchoate: nothing was yet absolutely certain in detail; all was yet matter in contemplation and unsettled. Of course the plaintiffs were entitled to just and fair remuneration for their services performed for the defendant and accepted by her, to be measured by a quantum meruit. According to the proof now before us, and as found by the referee, this amount was $167.50. As the case is here made, this sum, and this sum only, are the plaintiffs entitled to recover.

It is urged by the appellant’s counsel that there was error in the admission of evidence upon which the referee made his estimate of damages, by way of profits, because of the breach of the alleged agreement; and in the mode adopted by that officer in estimating such damage or profits. The conclusion above reached by us renders an examination of those questions unnecessary.

We are of the opinion that the judgment must be reversed and a new trial be granted unless the plaintiff shall consent to a modification of the judgment by deducting therefrom $250; in which case the judgment as so modified should be affirmed, without costs of appeal to either party.

Landon, J.

(concurring). The proposed house was only a castle in the air,” which the defendant imagined she would like to build if she could only settle upon the plan. She employed the plaintiffs to make some preliminary sketches and talked with them about preparing plans, details and specifications, but it is plain she had not settled upon any definite Elan, and that if the plaintiffs did any further work, it would e merely sketchy and based upon plans probable but not actually determined upon.. Before the plaintiffs had done anything further the defendant told them to stop. The referee allowed the plaintiffs $167.50 for what they did do, which I think was ample. He also allowed them $250 for loss of profits caused because the defendant discharged them. I agree with brother Bockes that there is no sufficient basis for this allowance, and I think it under all the circumstances, unjust.

Learned, P. J.

(dissenting). The referee finds as a fact that the defendant entered into an agreement with plaintiffs whereby they were employed to prepare preliminary sketches or studies for a dwelling house, and that they completed and furnished these to defendant February 3, 1886, that the value thereof was $107.50.

This finding is not without evidence. The estimated cost of the house was $16,750 One witness estimates such services as worth one per cent on the estimated cost. The sketches were prepared by plaintiff Wheeler and by McClure, in plaintiffs employ. Mr. Fuller states the value of his own services at ten dollars per day, and that of Mr. Wheeler’s at six dollars per day. The time was about six days. It would hardly be just to limit the value of these services to the time taken by Wheeler and McClure in making these sketches. The skill and time of Fuller, who seems to have been the principal architect may justly be consid©red. And they are doubtless considered in the statement made by one witness that such sketches were worth one per cent on the estimated cost. The referee further finds that on the 3d of February, 1886, the defendant entered into a contract with plaintiffs by which she employed them as architects to prepare and pomplete for defendant plans, details and specifications for a house and to obtain estimates and let the contracts. That on the 5th of February defendant discharged plaintiffs and elected to terminate her contract; that their damages thereby are $350.

There is evidence that on the 3d of February, defendant directed plaintiffs to go on and prepare, plans and specifications, get the estimates and have the work started (or let) as soon as possible. It is claimed by defendant that there is no evidence that this contract included the making of details and the letting of contracts. The testimony of the plaintiff and defendant differ in this respect. The defendant says she directed Fuller to prepare plans of the interior,' plans of the outside work. Sow on the evidence it might be found that the contract was that plaintiffs were to complete all the plans and specifications and necessary details, and to obtain estimates. The “details” are evidently a matter necessary for the guidance of the builder, and if the plaintiffs were employed to make plans for the interior and plans for the outside work, it is hardly to be understood that they were not to make the “ details ” needed' for the building. So that we cannot say that the referee’s finding is without evidence on this point.

That the defendant on the 4th directed plaintiffs to delay, and on the 5tli directed them to stop work is not in question.

It seems then that the referee was justified in findirg that there was a contract and that it was broken by defendant. Sherwood v. Hauser, 94 Y. Y., 636.

What then are the damages, if any?

The price for plaintiffs’ work was not fixed at a gross sum. In the conversation plaintiff Fuller, was asked what the charge would be, and he answered five per cent, on the cost of the house, which he stated then was estimated at $16,750. Of course as the defendant prevented the building of the house under these plaintiffs as architects, it cannot be told exactly what it would have cost. But it may fairly be understood that the price of the services was to be five percent on $16,750. It does not lie with the defendant to object that the actual cost of the house cannot be ascertained, for she prevented.

In Wakeman v. Wheeler & W. M. Co., 101 N. Y., 205. the subject of recovering prospective profits was discussed. It was held that damages which were the certain result of the breach can be recovered, although they are uncertain in amount; that one who violates his contract is liable for all the direct and proximate damages which result; that losses sustained and gains prevented are proper elements of dam•age. In that case the damages were peculiarly uncertain in amount. For the contract broken was that plaintiff should have the sole agency for the sale of machines in every place where he .should succeed in selling fifty machines to one party. Evidently it was quite uncertain how many machines the plaintiff would be able to sell if made sole agent for the place. Yet it was held that the damages could be recovered.

The question then in this present case must be what profits would the plaintiffs have made under this contract.

The percentage mentioned by Mr. Fuller appears from his -further testimony to have included superintendence during the building. And it is not found by the referee that superintendence was a thing included in the contract. The testimony of another witness tended to show that the value of preliminary studies, general drawings and specifications was two and one-half per cent, and with details three and one-half per cent. At three and one-half per cent on the estimated costs this value would be $586.25, from which must be deducted the value of preliminary studies, already allowed by the referee, leaving $418.75. The referee has allowed $250 for profits. It was shown that the work would be done by an employee of plaintiffs taking him some five weeks and that his labor was worth $2.50 to $3.00 per day. Also, that $8.00 worth of work had been done before the countermand.

The referee has not stated in detail how he arrived at $250 as the loss of profits. But what is above stated will show that his amount is neither without or against evidence, as a matter of fact.

As to the questions of law the case above cited seems strongly in point, and we recurto it. It was there remarked that when a contract is repudiated, the compensation of the party complaining of the repudiation should be the value of the contract. And while the court said that the opinions of witnesses should not be taken, they said that the facts should be shown and from those facts the jury should judge what the actual loss of profits had been to the plaintiff. That cause was followed here. The exact cost of the building could not be known because the defendant had prevented its erection. So in the case cited the exact number of machines which that plaintiff would have sold could not be ascertained because the defendant had prevented the sale. But there was evidence here what the building would probably have cost and that furnished a means of computing what the plaintiffs would have received. How much of such receipts would have been profits was also shown, and hence the result was reached.

Whether these damages might have been reduced by showing- that plaintiffs had been otherwise and profitably engaged, we need not inquire. Such evidence is not'in the case.

J udgment affirmed, with costs.  