
    Abner J. Haydel, Respondent, v. Charles A. Gould, Appellant.
    First Department,
    February 4, 1910.
    Evidence — action by architect for breach of contract — publication . approving other buildings designed by plaintiff-^- self-serving declarations.
    Where there is an issue as to the original terms of an agreement employing the plaintiff as an architect to design a house, and the defendant asserts that the plaintiff was to .make no claim if the plans were unsatisfactory, it is error to receive in evidence an article published in a scientific paper describing and . approving a house designed by the plaintiff which in no way resembled the house to be designed for the defendant.
    So, too, it is error to admit letters written by the plaintiff containing- self-serving declarations which have no bearing upon the issues and merely show his willingness to meet the defendant’s views, or to settle the controversy.
    Appeal by the defendant, Charles A. Gould, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the "16th day of June, 1909, upon the verdict of a jury, and also from an order entered- in said clerk’s office on the 15th day of June, 1909, denying the defendant’s motion for a new trial made upon the minutes. .
    
      Richard T. Greene, for the appellant.
    
      J. Noble Hayes, for the respondent.
   Dowling, J.:

The plaintiff, who is an architect, claims that on or about June 4,. 1904, the defendant, who was the owner of property on Long Island, entered into an agreement- with the plaintiff whereby plaintiff undertook and agreed to design and make preliminary studies and sketches of a castle or country house which the defendant was then preparing to erect upon his property; and that defendant agreed that upon the completion of the preliminary studies and sketches, if the same met with his approval, lie- would proceed to erect a house in accordance with such designs, and would employ plaintiff as architect at a total compensation for his services of seven and one-half per cent upon the estimated cost of the building, to be paid in the following installments: Upon the approval by the defendant of the preliminary studies and sketches, a sum equivalent to one and one-half per cent upon the estimated cost of the building ; upon the completion of the original drawings and specifications, a further sum of two and one-half per cent; upon the completion of the detailed drawings, a further sum of two per cent; and upon the entire completion, a final sum of one and one-half per cent for general supervision. .,

Plaintiff contends that, acting upon this contract, he prepared the preliminary studies and sketches; that he submitted them to the defendant and that the latter approved and accepted them, but that the defendant never proceeded with the erection of the house in accordance therewith, and never paid plaintiff anything for his services. Estimating the total cost of the building as completed to be $150,765, plaintiff sued for $8,293.37 as the damages caused by the breach, and recovered a verdict of $5,002.65.

The defendant denied that any contract had been made, but averred that, at the plaintiff’s solicitation, he allowed him to make sketches for a proposed residence upon defendant’s written agreement that if defendant would give the plaintiff a trial, the former would be under no obligation to the latter until such sketches had met with the defendant’s approval, and that should plaintiff’s services at any time before such approval prove in any way unsatisfactory, he would retire as architect with claim of no kind whatsoever for services upon the return to him of . the sketches. ' The defendant further claimed that plaintiff’s services were limited to the making of certain pencil sketches and drawings; that they were performed entirely within the terms .of the letter hereinafter set forth, and that no further services were rendered by the plaintiff.

There was produced a letter, whose authenticity is not questioned, and which reads as follows :

“Abner J. Haydel
“ 156 Fifth Ave.
“New York, June 3, 1904.
“ Dear Mr. Gould. — After making various sketches for your proposed residence I really feel that at best it is merely guessing at what you. desire and consequently I beg to suggest that in order that I might give you a house such as will suit your taste and requirements that, we go. over the premises more fully and then try various sketches in line with your ideas, and if you will kindly give me such a trial, I hereby agree that in no way will you be under obligations to me till the said sketches meet your approval, and should at any time before said approval I become in any way unsatisfactory, I will retire on return to me of all sketches, without claim, on you for such services performed.
“ Hoping I may be given the desired opportunity, I am,
“ Very truly yours,
“To.
ABNER J. HAYDEL
“ Mr. Charles A. Gould,
“ 1 West 34th Street.”

■ It was defendant’s contention that this letter contained the full agreement of the parties, while plaintiff urged it was but a portion Of the entire agreement.. Defendant denies that he ever accepted or approved the sketches furnished, as he claims, in accordance with this letter.

There were then two issues presented for the consideration of the jury : (1) The terms of the agreement between the plaintiff and defendant; (2) the acceptance or rejection of the preliminary sketches.

During tile course of. the trial' certain exhibits were, received in evidence which were outside of any issue in the case, and the reception of which was undoubtedly prejudicial to defendant. The question's submitted ‘depended for their determination upon the view which the jury might take of the relative weight to be given to the testimony of the plaintiff and the defendant, who were the sole witnesses both to the making of the contract and to the disposition made of the plans. The terms of the original agreement were of the utmost importance, and plaintiff by his complaint had set forth at length what he claimed them to be. There was offered in evidence an article published in the Scientific American describing a building theretofore erected at Newport, R. I., by plaintiff, together with an editorial in the same issue favorably commenting upon the plaintiff’s professional services in connection therewith. Objection was made to the receipt of this paper, the sole connection of which with the defendant was to be found in plaintiff’s testimony that he had shown this paper to defendant, having brought it with him because it contained practically all the photographs of Gray Crag, which he had previously shown him; that plaintiff talked over the article with the defendant; that defendant looked over the plans, and that plaintiff thought that defendant looked over the printed editorial matter in regard to Gray Crag. Plaintiff’s counsel contended that if defendant read the editorial and commented'upon it, the same was made a part of the contract between them. Upon this statement, the entire paper was received in evidence. It is obvious that this was error, for it was not the plaintiff’s contention that he was employed to make plans and sketches of a building which should be identical with or conform to those of Gray Crag; on the contrary, he admits that his undertaking was to furnish sketches which should be satisfactory to and approved by the defendant. Therefore, the plans of Gray. Crag could have no possible bearing upon this controversy, nor could the' editorial be admitted in evidence from any point of view.. It was what the plaintiff himself characterized it, “ A little puff for myself.” Appearing in a well-known paper, its effect was doubtless to fortify the. plaintiff’s position by indirectly vouching for his professional skill. It may be said that later in the trial the claim was abandoned by plaintiff that this editorial was any part of the contract, although it had been received in evidence upon that theory. It was error . as well to receive in evidence two letters, plaintiff’s exhibits Nos. 16 and 1Y, which are simply self-serving declarations, having no bearing upon any issue in the .case and whose sole effect would be to demonstrate plaintiff’s willingness to do anything within reason to meet defendant’s views or to amicably settle the matters in controversy.'

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

Ingraham, P. J., McLaughlin, Clarke and Scott, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appel- ' lant to abide event.  