
    NO. 8190
    COURT OF APPEAL PARISH OF ORLEANS.
    OSCAR P. MOHR vs. FOUR BROTHERS ICE CREAM COMPANY.
    
      
    
   Dinkelepiel; J.

The plaintiff, an architect in the city of JTew Orlssns sues the defendant for the 3um of §300.00, being for plans, spe-cificetione and extra work, balance due plaintiff on alleged con-* tract to erect a two story building for defendant costing the sum of about §7500.00; th't defendant had frequently promised after paying $300*. 00 on the original bill, which wfs for §450.00 to pay the remainder, filling to do so, henos this suit.

pleading The defendants, for answer,/ first a general denial, admit th?t plaintiff did present them certain drawings end specifications, but denied that same were drawn under any oontract made between parties or that plaintiff obtained estimates and bids for seme, they admit that plaintiff presented them with a bill for §450.00, §300.00 of which 'was paid by them through error, they deny that they had ever in any way ordered the plans o.nd specifications as drawn up by plaintiff, thet he did sc without their consent or agreement and oontrary to their expre-sed orders and they allege that they wanted plans for a building on the rear of their property, 310'So. Rampart Street, in this City, which was to cost not exoeeding §3000.00, that plaintiff understood their orders, but contrary tc same presented a plan for building entirely unnecessary for their business, absolutely beyond their means for payment, of which ft.ct pie in tiff was notified and to v/hich he did not pay the slightest attention and that if they were able to have read the English language, to which they were foreigners,and had understood the plans and specifications presented to them, they would have never paid §300.00, Which they paid under alleged false representations by plaintiff and for which they ask, in reconvention, a judgment and the dismisse.1 of plaintiff's suit.

Without entering into a full disoussion of all the testimony in this case, together with the plans and bids for work and specifications presented hy plaintiff in his testimony and annexed to this record r-cora, plaintiff swesrs most posi-tivaly- that before drawing up these plans at his office in this city, under an appointment with one of the defendants who called to see hi®, Mr. Niok Kleanennaks, on or about the 19th of October 1919, stating that he had been referred to him by Gerber Brothers who were landlords of the defendants and for whom plaintiff had remodeled building oocupled by them and he testifies that defendants told him that they wanted to build a bakery on the rear of the property 610 So. Hampar.t Street and they disoussed the building and everything in reference thereto and that he wanted to build a modern up to date building which would cost between Seven and Eight thousand dollars, and would be a very modern, sanitary and absolutely up to the last building oode, and that he was authorized to prepare the plans and specifications in accordance with that wish and whioh he did and this conversation took place between the parties mentioned at plaintiff's offioe.

He further testified that he prepared the plans dis-oussed and agreed upon between him and the defendant and on the 6th of November, following, presented a bill for services rendered for 1450.00; that was the usual terms for architects work; the • building was completed he was to get ten per oent of the amount it would oost; if not, he was to get three fifths of that amount for plans and specifications.

He goes on at great length in his testimony to state what he did, that he had the place surveyed by a surveyor, for which the defendant paid the bill and says that when he presented the bill that he was told by Kleanennaks that they were a little pressed for money but that he would pay him two hundred dollars cash and pay the balance within a month; he was desirous then of building a much cheaper building, the -whole not to ex-oeed three thousand dollars; he further testified substantially that there was a contractor by the name of McGovern who subsequently ereo-csd the building for defendants ~t much less cost and that he, plaintiff oould have nothing furth-r to do with the matter, be -alaims the additional fifty doliera''*0 compensation for endeavoring to get lower estimates for the building, hut the best he oould do was to get a two story building, doubtless complete in every way,- but muoh more expensive than the defends ants wish to pay, he details many oonyersation all in the English language, whioh he had, particularly with the defendant named and that when he foutd that he oould not ereot the building as desire by the defendants he had no further oonneotion with them and refused to have any; he admits that these parties all spoke broken English but he did not know that they oould neither read nor write.

In behalf of the defendants, there were four witnesses. The first, Hr. Q. Gerber, who had known both plaintiff and defendants for many years, the defendants being for years, his ten-ents in the building referred to and they were neighbors; he testified that Mr. Eleanennaks informed him- that he was going to build a single story bakery, that he had an old double house that he wanted to tear down and this witness told him that if he wanted work of this oharaoter that he better get an architect and he suggested the employment of the plaintiff in this oe.se, he frequently saw plaintiff and defendant together in defendants' place of business and he knows that plaintiff want to the defendants' shop, examined everything and told this Witness "those fellows want to make a single story and I want to make a two story, you can talk him into doing that, a two story would look better", I asked him how muoh it would cost and he told me about seven thousand dollars, when I informed defendants of this in the conversation he replied "I don't want a two story building, I oannot pay for it" and plaintiff subsequently told this witness that if they did not want a two story building they had better let the whole matter alone, he testifies substantial]v that defendants frequently told him that they oould not afford-to put up any -such a building as the arohiteot wanted them to do, they did not -.’ant a two story huilding f-nd that the pls.lntlff then being told this by this witness again expressed himself th?t he had better leave the whole matter alone and let them do it themselves, if he oould not make a nice looking building better leave it alone.

This witness further goes on to testify thet defendants never wanted to spend more than three thousand dollars •and when the plaintiff told them seven thousand they insisted they oould not afford it, did not have that muoh money, they were not willing to do it, that they were hard working men and that they did not need a haddscme two 3tory building for their purposes, the sum and substance substantially of the further testimony of this witness who is a business men but not muoh of an educated man, was to the same effect and the entire conversations were either at his place of buslne.se ants or at defend'.-nts and it was thoroughly understood between plaintiff and defendant that this defendant oould not spend more then three thousand dollars and they onljr wanted an ordinary building in whioh to bake bread and thats what they finally put up and he knows too that Niok Klesn-ennaks neither reads nor writes, he can about sign his name, when ever he wants anything done that requires reading or writing he calls in witness's olerk to aid and help him.

One of the defendants, Hick KLee,ne&* nake testifies that he is a member of defendants' firm, he had entire oharge of dealings with plaintiff, that he is illiterate neither reads nor wixk writes and he signs his name the best he oe.n, he is somewhat acquainted with figures, he remembers the first time plaintiff oalled at his piaos, he never 'went to plaintiff's offioe, he did not know where it was, and all the conversations had with plaintiff were in their shop> plaintiff was reooommended by his neighbor and former landlord, Hr. Gerber and when plaintiff oalled at his place, he explained to him ae best he oould |ust what building he wanted, and amongst other things said to him "X want a one story building, flat roof, plaintiff answered "no, it will not be right", he then testifies "I don't .vent tc spend a whole lot of money for this" and pi'intiff told him "I v/ill see what X can do"; amongst other iht matters testified to by this witness he says th=-t plaintiff ¡•shed him ho-.v muoh he proposed to spend on this building and Ms answer was ¡..bout three thousand dollars, no more then that and he says that plaintiff said alright I will see what I oan do for you he subsequently returned with plans, lid not mention the price until he presented a bill and not being able to read or write when asked to pay a oertain amount of money he did pay two hund-' red dollars but made no promises of paying anything more, believing that he had paid the prioe in acoordanoe to the building he oontemplated putting up; after reoeiving the two hundred dollars plaintiff said to him, you owe me two hundred and fifty dollars more and hie reply wss "are you going to charge me that muoh? And plaintiff said "yes", the plan costs

$7500.00", he immedie.tely made protest end told him he did not wont that kind of a plan and ple.lntiff says that he made that plan for him and it would not fit anybody else's house and walked away from the establishment. Subsequently after he had left, not being able to understand the plans I took them next door to '.lx. Gerber, showing them to a Hr. Hart one of the clerks there, who had frequently translated writing to me before, who read it for me and th'-t was the first time th1. t I understood anything at all about the plans which plaintiff says he drew up and presented to me, I never understood it until it was explained to ms by Hr. Hart, I did not tell plaintiff to go ahead to get additional bide or ever agree to pry him fifty dollars for th‘-t, I told him expressly as X had always done before th..t I oould not afford and would not be willing tc pay $7500.00 or $8000.00 for a building and I did not v/.-.nt a building of thrt kind. He further testifies that he employed Hr. IScGowan and he put up the building X wanted just a three builUn^ of briok th*t building oc3t r.ie $3850*00, that he did not give "the plane or specifications left by plaintiff to Mr. MoOowan and the building was ereoted by him for the price and sum aft stated and that was the oharaoter of building he wanted and no other, that plaintiff presented him denies with a bill,/chat he agreed and promised that he would pay the differenoe or $350,00 at the end of the month, denies that he wanted a two story building, that he only wanted a one story building built out of brick and to be used for a bakery to make bread, not a plaoe to sell bread, because he had a place in front( used as a confectionery, where he sold bread,oakes and other tk$ things, but in this particular plaoe he only wanted to bake the bread and that is what he testifies he positively told plaintiff to make plans for and nothing else. This witness on oross examination, considering he is an uneduoated man did not waiver materially in any of the testimony given by him in ohief, he details that he had been in this Country sinoe 1908, hard working man, was a member of defendants' firm and tha.t he had oharga of the building in question and was the only one that knew anything muoh about it, one way or the other.

Arthur Kleanennaks, one of the defendants and a broths^ of the witness who had testified in this oase neither reads nor writes, oannot sign his name, knew the plaintiff, had saw him oome into the shop the first time to have a conversation with his brother Hiok and the substantialparts of his testimony confirms what Hiok had testified to, that he wanted plans to build a plaoe and told him the kind of plaoe he wanted to build and when Mr. Mohr spoke of $7600,00 during the course of the oonver-. sation he was emphatically told by his brother that it was entirely beyond his means, that they could not pay over three thousand dollars; never saw Mr. Mohr but onoe.

Benjamin Hart, a witness for the defendant, who knew them very well, worked in October and Bovember 1919 for Gerber Brothers and he says that he was present on one occassion at a conversation between plaintiff and the defendant in reference ■bo the.proposed, building of a bakery for the defendants; that cSSii versatlon was in 193.9, about the latter end of the year and substantially KStipBasKSijc testifies that plaintiff was speaking to Mr. Gerber in order to get him to induce the Greeks next door, so plaintiff called them, to erect a two story structure and that Mr. Gerber told plaintiff, "you know what they told you from the beginning and what they want, they want a'one story structure, the oost not to sxoeed Three thousand Dollars"; Mr. Gerber further told him . "I reoommended you and I would like to see you get that work."

Witness is not positive but he thinks this conversation between these parties was before plaintiff was employed; subsequently Mr. Hick Kleanennaks came over with the documents heretofore testified to, he asked me to read the bill for him as he could not read, which I did. In a general way this witness testifies that this these people were absolutely illiterate, could not read nor write and that he, witness, explained as best he oould, the matters testified to.

Ws have thus endeavored to state substantially the evidence as presented'by the testimony/the witnesses in this case on both sides.

We are of the opinion that on acoount of the inability particularly of Wiok Kleanennaks to express himself in any sort of English to be understood,that plaintiff fell into an error in disobeying the instructions given him by the defendant and att tempting to drew plans and specifications for a building which would oost almost Ism three times the amount of money which defendants were willing to pay, and the best proof, in our opinion, of this, is the employment of another oontraotor by the defendants, who built the structure they wanted and which they expected plaintiff to draw plans and specifications for, costing the sum of $32§0.00. It is unfortunate that plaintiff, with a great deal of labor and skill endeavored to mske and did make plans and speoifioations contrary to defendants' orders and against their objections. We are satisfied that plaintiff did 'exert iSSmeli and try-í.to persuade: the defendants to accept pleat, and speoifioations "as presented to them by htm, which they had always refused, cut we think that haring paid him the two hundred dollars, that he Is entitled to that amount, but no more.

We are further of the opinion' that notwithstanding the oounter claim made by defendants in reoonvention for the money thus paid, that plaintiff was entitled to same and said claim should and is therefore dismissed.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment of the Court aqua in favor of plaintiff be and the seme is hereby reversed, annulled and avoided, and that the reoonventional demand of the defendants be rejected and that there now be judgment in favor of defendant rejecting plaintiffs olaim with oosts of both Courts.

Judgment reversed.

NO. 8190

COURT OF APPEAL PARISH OF ORLEANS.

OSCAR P. MOHR vs. FOUR BROTHERS ICE CREAM CO.

Dinkelspiel; J,

On rehearing.

-— Wa have oarefully reexamined this ease and wo find that whilst we ware in error in stating that plaintiff was to furnish opooifioatioas and plane for a one story building, that we in tho original opinion rendered in this ease, stated that he was to furnish plans for a two fitosy building, hut we did not de-cido thio ease for that pastleular season. On the contrary tho question presented wao entirely one of faet; tho burden of pso(3f wao on the plaintiff? wo were satisfied he had not and did net sustain thio burdoa, hut on the contrary the evidence preponderates i» favos of defendant and for that reason we deaidod the case ao wo did.

5?©r the saasons assigned it is orderod, adjudged and etoossod that our former opinion rendered in this oase he maintained and that the Judgment there will not be disturbed and th® Judgment of tho lower Court whloh was in favor of plaintiff bo sovorsod, aaullsd and avoided, the reconventione.l demand of tho dofandante bo sejootad end that there be a Judgment now in favor of defendants, rejecting plaintiff's claim with sosts in both oousuoo

-Judgment reversed-  