
    Wesley D. Hunter, Appellant, v. John Vicario, Respondent.
    First Department,
    July 7, 1911.
    Contract — employment of architect for contingent fee — breach by owner- — failure to prove damages — recovery on quantum meruit.
    An architect who has prepared plans and specifications for the alteration of a building under a contract with the owner whereby he is to have as compensation one-half of the money saved to the owner on the lowest estimate of bidders is not entitled, in an action for breach of contract to recover one-half of the difference between the lowest bid for the whole contract and the price for which several sub-contractors agreed to do the work, in the absence of proof of what the work would have actually cost if done by the sub-contractors.
    But where, after the plans and specifications had been drawn and bids had been obtained, the owner abandoned the enterprise and. ref used to proceed with the work, the architect can recover on a quantum meruit on ■ proving the customary charge of architects for such work.
    The contract aforesaid is not a building contract, but one to render professional services as an architect, and this is true although the architect was required to supervise the work, that being within the ordinary scope of his employment.
    The legality of such contract is not affected by the fact that it was not one approved by the' American Institute of Architects, nor because of the contingent nature of the compensation.
    The fact that the contract provided the manner in which the compensation was to be determined did not prevent a recovery on quantum meruit, where the architect had partly performed but the owner refused to proceed with the project.
    Ingraham, P. J., and L'aughlin, J., dissented, with opinion.
    . Appeal by the plaintiff, Wesley D. Hunter, from a judgment of the Supreme Court in favor of -the defendant; entered in the office of the clerk of the'county of New York on the 22d-day of December, 1910, upon the dismissal of the complaint by direction of the. court at the close of plaintiff’s case on a trial at the New York Trial Term.
    
      Theodore B. Richter, for the appellant.
    
      Louis O. Van Doren, for the respondent.
   Dowling, J.:

The defendant was the owner of the premises .known as Nos. 130-132 Worth street in the city of New York and desired to make alterations therein. For that purpose he had received certain-specifications from P. Boberts & Co., builders, with an estimate for the work thereunder. " Thereafter he had negotiations with plaintiff, an architect with an experience of upwards of twenty years, as the result of ■ which negotiations defendant wrote plaintiff as follows:

“New York, July 11th, 1901.
“ W. Darwin Hunter, Esq.,
“ 60 Wall Street,
“New York City:
“Dear Sir.— Following our conversation of yesterday I put in .writing what I told, you.,
“ I desire to have a copy of the specifications as you will suggest for the alterations on the building at 130-132 Worth St. sent to-several contractors. >
“ I will select the bottom figure,, and any amount which you can save on the bottom figure will be shared between us in equal, part. I agree to- pay the bills as soon as they are presented, if necessary, or you can get the best' terms,-not being necessary for me to pay cash if there is no profit.
.“ Yours very truly,
“JOJIN VIC ABIC.”
To this plaintiff sent the following reply:
“New York, July 19, 1901.
“John Vicario, Esq.,
“ 90 Centre Street, City:
“Dear Sir.— In reply to your favor of July 11th, I beg leave to say that I will undertake the matter of drawing up plans and specifications for. the alteration of your building at 130-132 Worth Street and obtain, estimates thereon, as you suggest, from good reliable builders, with the understanding that I am to have as my compensation one-half of the money saved you on the lowest estimate which I obtain.
“I will have plans,- specifications and estimates ready to submit to you on or about September 4th.
“Tours very truly,. ■
“W. D. HUNTER.”

These two letters are claimed to constitute the contract between the parties. Thereafter the plaintiff - proceeded to make sketches and measurements of the building, and to prepare plans and specifications for the work of altering the same which differed, in certain material particulars, from those previously prepared and the cost of performing which exceeded the prior estimate. These plans and specifications were furnished to defendant, who retained them, and though suggesting certain changes which added to the expense, never rejected them or suggested that they were unsatisfactory to him. The plaintiff then proceeded to obtain estimates from various contractors, as he was called upon to do under his contract, and succeeded in getting certain bids for the entire work called for in the plans and specifications, the lowest whereof was that of Isaac A. Hopper & Son, in the sum of $26,480. Defendant desired to have Roberts & Oo. bid on the work, as he deemed them reliable and did not want any one else to get the contract unless the work was done more cheaply, but he notified the plaintiff on November 12, 1901, that they would not bid on the work. In the meantime plaintiff had interviewed some fifteen or twenty sub-contractors, from-whom he obtained estimates on the performance of parts of the work appropriate to their respective trades, thus furnishing a basis for the ultimate saving of expense between the cost of the actual doing of the work by contract for parts thereof, and the lowest estimated cost of the doing of the entire work by one contractor. Defendant, however, abandoned the enterprise at that time, never proceeded with the work under plaintiff’s plans-and specifications, and -never paid plaintiff anything for his services. He did make certain alterations in the building in February, 1909.

• The complaint herein sets forth two causes of action: (l) On the contract before recited, to recover damages amounting to $2,648,. being one-half the difference between the lowest estimated cost of. the alteration and improvements ($26,480) and what would have been the actual cost to defendant ($21,184); (2) on quantum meruit to recover the reasonable value of the services rendered by plaintiff as an architect in drawing the plans and specifications for the alterations in question.'

At the close of the plaintiff’s case the first cause of action was dismissed, and properly, because there was’ no proof offered of what the work would actually have cost if done by contractors, each of whom did’ but a part thereof, and, therefore, the essential element was lacking for a comparison with the lowest estimated' cost, and' the saving which might have been effected could not be estimated.

The second cause of action was then likewise dismissed, on the ground that plaintiff had not proved his damages and they were not capable of proof in such an action. It is also sought to sustain this dismissal now on the ground that the services to be rendered were not those of an architect, but of a builder, and that as there was a contract fixing the value of the services to be rendered by plaintiff, he could not recover on quantum meruit. We do not believe the dismissal of the second cause of action can be sustained on any of these grounds. Examining the reason assigned by the learned trial court for its action, we find that plaintiff ■ had established the rendition of professional services as an architect in the drawing of plans and specifications for certain alterations in defendant’s building, at his request, and that the customary and usual charge for drawing plans and specifications is six per cent of the proposed cost of the alterations, in this case $26,480. So that damages amounting to $1,588.80 had been actually established upon plaintiff’s case. Nór are the other grounds assigned tenable. The contract in question is not in any sense a building contract. It is clearly one for the rendition of the professional services of an architect. Nor would the fact that he was required to render services in supervising the work to be done thereunder change the nature of the employment,, for such services are within the ordinary and natural work of an architect. Nor does the fact that this particular form of contract is. an unusual one for an architect to make, and one which is not approved by the American Institute of Architects because of the contingent nature of the remuneration provided for, affect its legality, It was competent for the contracting parties to determine for themselves how the plaintiff’s compensation should be fixed. Finally, the fact that a contract had been made determining the amount of the architect’s fees did not prevent him from suing on quantum meruit when plaintiff had partly performed thereunder, but defendant refused to proceed therewith. The rule is that where a special agreement for services has been performed in part by plaintiff and its further performance has been prevented by the act of the defendant who has repudiated same and refused to continue to perform, the plaintiff may at his option either sue for the breach and recover damages, or abandon the contract altogether, repudiate it because of defendant’s repudiation and recover under quantum meruit. (9 Cye. 639, 688; 26 id. 1000; Milage v. Woodward, 186 N. Y. 252; Dailey v. Devlin, 21 App. Div. 62.)

The judgment appealed from should, therefore, be reversed and a new trial ordered, with costs to appellant to abide the event.

McLaughlin and Miller, JJ., concurred; Ingraham, P. J., and Laughlin, J., dissented.

Ingraham, P. J.

(dissenting):

I think this judgment should be affirmed. The plaintiff undertook to prepare these plans and specifications and, was to receive as compensation one-half of the difference between the lowest figure for which a responsible builder 'would undertake to do the "work and the amount for which the plaintiff could do it. The two letters which are assumed to state the contract are not exactly alike, but as the plaintiff proceeded under his letter to the defendant, dated July 19, 1907, that letter maybe taken as constituting the agreement. The plaintiff drew plans and specifications and obtained a bid to do the whole work from Hopper & Son for the sum of $26,480. The plaintiff then interviewed sub-contractors and obtained .estimates from- them for doing portions of the work; but I cannot find that on the, basis of those sub-contracts the plaintiff would have been able to do the work at a less ..price than that represented, by the Hopper bid. ' Subsequently the work was.' abandoned and was never completed. Upon these.facts I do not think■ that any judgment in favor of the plaintiff for more than nominal damages could be sustained. The. plaintiff was not. entitled to recover upon, a quantum, meruit', because there was no employment under which the plaintiff was to' be paid the value of . his services. He agreed to do the work and to. receive for his compensation onerhalf the difference between what he could do the work for without a contract and the amount that the lowest bidder would' do the work for with ,a contract; and to entitle him to recover he was bound to prove that if he had doné- the work he could have completed it for a less sum than that, bid by the ^lowest bidder. He failed to furnish that proof. I do not. think, therefore,, that he was - entitled to recover a substantial judgment.

The judgment should be affirmed.

Laughlin, J., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.- ' ■  