
    Schleier v. Luedeke.
    Where the testimony in a canse is conflicting, and the verdict is not manifestly against the weight of evidence, the verdict will not be disturbed.
    
      Appeal from District Court of Arapahoe County:,
    
    The complaint was for work and labor and services as an architect. The plaintiff obtained a verdict and judgment for $442.50; a motion for a new trial having been overruled, the defendant below prosecutes this appeal! The evidence as disclosed by the record was as follows:
    Luedeke testified: “I first met Mr. Schleier in the little building of John Aisley, and somebody told me he was going to build, and he would like to take me as an architect. Well, he said yes; then he asked me, he don’t want to pay very much. He told me I have to do it reasonable, and he took me up to his office and said he is contemplating to build a building on Arapahoe street for $5,000; how much I would charge for it. He says a two-story building, a plain building. I say if plain, no subdivisions, not to lay it out in rooms, I do it for two and a half per cent. Well, how much you charge if you subdivide it then? — this happen in his room at that time,-— how much for sketches and drawings, and then for details and copies and superintending them, and I put that down on paper and figured it up on paper there, and I told him so much. Well, he said, at present I will not do anything; and then I did not hear anything from him for I think about a couple of months, and then he said I have some property on 16th street, and I want to build a building there.
    Q. He did not build a house on Arapahoe ?
    A. No, not at all. He want to build a two-story ' building there, and probably the Tribune going to occupy it. Well, I made sketches for it there — preliminary work. Then there was talk a good deal about it forwards and backwards. Then he come, and said he won’t build a two-story building; he will build three-story building. Make for three-story buildings plans again. Then, when all the plans are done, he says, now I bought a house of A. B. Daniels. All the materials in that building I want to apply to this drawing. I had to abandon all the design I had made and make everything of that old building suiting to go in the finer building; so the building was all right. It was understood and rented on the first design, and the Tribune party was disappointed not to get into the original building.
    Q. Did you have any contract with Mr. Schleier how much you were to receive for the drawing on this building?
    A. Not at all on this building.
    Cross-examined:
    Q. Did you not tell Mr. Sleeth that you did not make that agreement to do this work for $125 ?
    A. I did not on this building. That $5,000 building on Arapahoe street; that occurred a long time ago.
    Q. Do you say that Schleier talked about putting up a building on Arapahoe street ?
    A. Yes, sir.
    Q. The one he did put up and the one you superintended was on 16th street ?
    A. Yes, sir.
    Q. What did Mr. Schleier say to you that led you to agree to put up that building oh Arapahoe street for $125 ?
    A. Well, I did ask him how much it would cost; $5,000 he said. Well, then, I charge you $125. I think it was my statement; but if it costs more, I said I charge you more.
    Q. Did Mr. Schleier say to you that he must have any arrangement he made with you in writing and signed by you?
    A. No, sir.
    
      Q. Did you sign any agreement with Schleier ?
    A. I did not make any agreement with Schleier in writing at all.
    Q. Did not I just show you a paper here ?
    A. Certainly, that is my writing.
    Q. Did not you say you signed it ?
    A. I think it is my name on the edge. I always do, if I make some writing, put my name on the edge, very often.
    George O. Schleier, defendant, sworn:
    Q. You may tell the jury, Mr. Schleier, so that they will understand how the interview between you and Mr. Luedeke, in reference to his employment as architect for that building, what he said to you that preceded his signing of this little paper that I have here — you know what it is. I will show it to you in a minute —■ what he said with reference to desiring to be employed; how he would do, and so on, and what led to the signing of this paper between you and him. State it in your own way to the jury.
    A. Well, Mr. Luedeke heard that I was going to build. He came to me, said that he was a beginner in the business, and would like to get the work. He wanted to make a start. He had just started. I told him I would see about it. Well, he came a number of times; was very anxious about getting the work. I asked him one day what his charges • were. Well, he said he would not charge any regular charge; he wanted to get to work. I told him I would want to understand, before I went into anything, what the charge would be. I did not want a man to go into work and not know what he was going to charge me until the work was done. We had different talks, and so one day he came up into the office,' and I told him what I wanted, and then inquired of him what he would charge to get out these plans, superintend it —■ the whole thing. He said he would get out the plans for $60 —if he superintended it, it would be $50 more, which ■would made $110,— and I said to him, we had better have this in writing; suppose you just make a memorandum of it. He sat down and signed that little piece of paper, what he would do the work for. This is the building I am talking of now, on 16th street. There never was anything done in reference to a building on Arapahoe street, in the world. I spoke about building there, but there never was a plan or any thing done in the world about it. We just merely talked, but there was no plan made. I have not yet. I had no plan and no way of building there, no idea what I wanted. Of course I could have nothing drawn until I knew what I wanted.
    Q. Is that the paper that he then and there signed?
    A. That is the paper. (4860, W. Gr. W.)
    Q. What building were you talking about, and the cost of the plans, details, drawings, superintending, etc., when he drew that paper; what building was it ?
    A. The building that stands there now — the Tribune building. The plan had not been entirely matured; we made some few alterations afterwards in the building; hut the building is the Tribune building that was talked of when this paper was signed,— on 16th street.
    Q. A three-story building ?
    A. A three-story building; yes, sir.
    Q. Did you then (when he presented his bill) call his attention to any arrangement or understanding you had ?
    A. Yes, sir. I showed him this paper, and asked him if that was not the agreement that he made with me. He said no. I never signed no paper. He said that is not my writing at all. I told him it was, and that I would testify to it. He said he never signed it.
    Memorandum read, as follows:
    Plans and specifications and details complete.................... $60 Duplicate of plans and specifications............................ $15 Superintending................................................. $50 (Signed) H. Ltjedeke.
    
      H. Luedeke, recalled:
    (Memorandum offered by defendant shown to witness.)
    Q. State for what building that paper was given.
    A. On Arapahoe street.
    Q. The one in question on 16th street, or is that the building ?
    A. No, that is not on 16th street. Nothing transpired afterwards for two months, or two and a half months.
    Q. Nothing transpired after that was given for two or three months ?
    A. Yes, sir; two or two and a half.
    Q. Did you ever give him that paper or any other as to the price on 16th street ?
    A. No, sir; I did not.
    Q. At the time that was given, was it given in relation to the Arapahoe street building, or on 16th street ?
    A. No; in relation to the Arapahoe street building. The cost to be $5,000, and if it should cost more than $5,000, proportionately more; and that is only the figuring up on my part how much it would be, and I am in a habit of signing my name to most everything, and left it lying there on the table, and talked continuously.
    Q. That had no reference to the 16th street building ?
    A. None whatever.
    Exhibit marked “4862, W. Gr. W.”
    Plans and specifications and details............................... $60
    Duplicates of plans and specifications............................ 15
    Superintending................................................... 50
    H. Luedeke testified:
    Q. Did you ask Mr. Schleier for your pay ?
    A. Yes, sir.
    Q. What did he say to you ?
    * * * I presented my bill to him.
    Q. Is that a copy of the bill ?
    A. Yes, sir; I presented this bill to him. * * * (Paper marked “ Ex. B. W. Gr. W.”)
    
      Plaintiff offers, — •
    Exhibit A, plans and specifications, admitted.
    Exhibit B, admitted.
    Exhibit “ B.”
    Denver, July 13, 1880. George C. Schleier dr. to H. Luedeke: No. 1. Making preliminary studies for an $8,000 building..... $40 00 No. 2. Making preliminary studies, general drawings, etc., details. Superintendence for $11,000 building.............. 275 00 No. 3. Making alterations for and applying old materials on plans of buildings mentioned under No. 2................... 72 50 No. 4. Measurements of old building materials (A. B. Daniels’ residence) .................................................. 30 00 No. 5. Bill of quantities, etc................................. 25 00 $442 50
    Four hundred and forty-two 50-100, lawful money of ifche United States of America.
    Mr. Lucius P. Marsh, for appellant.
    Messrs. Sleeth and Stair, for appellee.
   Elbert, C. J.

We are asked to reverse the judgment .of the court below on the ground that it is not supported by the evidence.

We have had frequent occasion to lay down the rule that where the testimony is conflicting, and the verdict is not manifestly against the weight of evidence, the verdict will not be disturbed. Barker v. Hawley, 4 Col. 327, and cases cited.

In this case there was a conflict of testimony touching "the memoranda signed by appellee. The appellant testified that it referred to the plans, specifications and superintendence of- .the Tribune building. The appellee testified that it referred to a building to be erected on Arapahoe •street. Neither was supported by other testimony.

We see no ground for saying that the jury should have ;given credit to the appellant rather than to the appellee. The case of Walling v. Warren, 2 Col. 434, was similar in its facts, and the court refused to disturb the verdict.

The judgment of the court below is affirmed with costs.

Affirmed,  