
    Saad v. Bates.
    (Decided April 24, 1925.)
    Appeal from Pike Circuit Court.
    Contracts — Architect Held Entitled to Recover on Basis of Cost of Building he Designed, and Not Cost of Building Actually Constructed. — Where architect was to receive 3 per cent, of cost of building for preparing plans and specifications, but owner abandoned such plans in large measure and constructed building costing a great deal more, held, that architect was entitled to recover only for 3 per cent, of cost of building which he designed, and not 3 per cent of actual cost of building.
    STRATTON & STEPHENSON for appellant.
    PICKLESIMER & STEELE for appellee.
   Opinion op the Court by

Drury, Commissioner

Affirming.

Appellee recovered judgment for $443.55, and appellant’s counterclaim for $2,500.00 was dismissed. Appellant being desirous of building a modern ■ theatre building in the city of Pikeville, procured the services ■.of the appellee, who is an architect. By the terms of their written contract, he was to pay appellee 3% of the cost of the building for preparing the plans and specifications. Appellee claims in his petition that he is entitled to recover 3% of $40,000.00, making $1,200.00, and in the amendment an additional $150.00 for revising plans at the request of the appellant, which revision was brought about by appellant’s changing his mind as to the kind of structure he desired. In his answer and counterclaim appellant partially denies the allegation of the petition and undertakes by way of counterclaim to allege a breach of contract on the part of appellee, which damaged him in the sum of $2,500.00, and pleads this as a counterclaim against appellee’s claim.

When the plans were first prepared, the cost of the proposed work was found to exceed the amount appellant was willing to pay, and appellee amended the plans and assured appellant the proposed building could be constructed according to the amended plans for $19,-785.00.

Appellant abandoned the plans in a large measure and constructed a building which he says cost him a great deal more money. Clearly appellee’s recovery should be only for 3% of the building he designed. The trial court gave him judgment for $443.55, which was B.% of $19,785.00, after allowing credit for the $150.00 that he admits was paid him. Appellant’s counterclaim was properly dismissed as the testimony did not support it.

, The judgment is affirmed on both the original and cross appeal.  