Stroeh v. McClintock

ELLISON, J. This is an action for the rendition of services by plaintiff to defendant in the capacity of an architect. At the close of the evidence in plaintiff’s behalf the trial court sustained a demurrer thereto and judgment was rendered for the defendant. The difference between these litigants is more of fact than of law. It is a rule of law uniformly enforced that if one employed to do a particular service of his own fault fails to perform it; or if he be employed in a stated service for a stated time and of his own fault quits before the expiration of the time, he cannot recover anything for the reason that performance on his part has not been had. [Posey v. Garth, 7 Mo. 96; Schnerr v. Lemp, 19 Mo. 41; Earp v. Tyler, 73 Mo. 619; Banse v. Tate, 62 Mo. App. 151.] In Caldwell v. Dickson, 17 Mo. 576, Judge Scott said that “The law does not permit a man, by his own wrongful act, to apportion his contract. As between lessor and lessee, if the lessee is deprived of any portion of the leasehold, by the act of the lessor, the law discharges him from the payment of the entire rent. The law is equally well settled that, with regard to part performance of an fen-tire contract for labor or service, a refusal or omission to perform the entire labor or service, without any act or consent of the other party, will not entitle the party who has performed, in part, to recover any compensation for the service which has been performed. The entire performance is a condition precedent to the payment of the price, and the courts cannot absolve men from their legal engagements or make contracts for them.” Defendant had rented a one-story business building in Kansas City and he desired to remodel the interior and the front of the exterior, so as to make of it an attractive restaurant. He employed plaintiff by verbal contract to prepare drawings, plans and specifications for these changes and improvements and to [371] architecturally superintend their construction. The contract is alleged to be that so far as the interior of the building, these drawings and plans were to be such as would “satisfy the peculiar taste and desire of defendant.” There are no affirmative terms of the contract alleged or shown as to the character of the drawings, plans and specifications for the exterior front of the building, but the evidence shows that the parties understood and acted upon that part of it also as providing for the taste and approval of the defendant, for the evidence shows that several times he did object to certain designs and plaintiff would make changes. Finally defendant objected to copper work in the front of the building and informed plaintiff that he “wanted an electric sign instead — that he did not want copper work at all.” Plaintiff, as he, himself, testified, objected to making the change, not on account of trouble, nor that it would not be within the terms of the contract, but that it did not suit his, plaintiff’s, taste and that it would destroy the “architectural features” — that it “would destroy everything that was necessary for an architectural effect on the building.” The issue between the parties was sharply presented. The defendant insisted there must not be copper work. The plaintiff said “I told him that I was sorry about it, but Í couldn’t consent to change that part of it — that it was to conform with my ideas as an architect, and I wouldn’t consent because I wouldn’t like to suffer by it in my profession.” Defendant then informed him that the copper work must be omitted or the plaintiff must quit, and the plaintiff informed defendant that rather than omit it he would quit. And so the matter ended, except that plaintiff retained the plans, drawings, etc., which were then in his office and gathered up those that were in the building and kept them. The view of the trial court was correct. The taste of the architect is advisory; the taste of the employer [372] is controlling. Otherwise the owner could not procure what he desires. It might finally come to this: that the owner would say I think a red brick house with shutters for the windows is sightly and I want that kind of a house. The architect might say, that would be an abomination and you shall not have it. The law cannot countenance that condition of affairs. The owner should be protected in what may very properly be termed his natural rights, unless, of course, he contracts them away. Thus the owner could contract for plans to conform to the taste of the architect and when the latter performs he must receive his reward. So the contract might be for preliminary plans, drawings, etc., for consideration and adoption. But these suggestions do not imply that an architect may dictate, without a contract to that effect, what sort of material shall be used in construction, or whether the business man shall or shall not have provision made for a sign on the front of his building. The contract in this case did not name the sum to be paid the architect for his services and it was his duty to comply with the wishes of •his employer. If, without his fault, he was required by the owner to do more work than should have been necessary — work required by the change of mind of the employer, that would have been proper matter to consider in determining the amount of his compensation, but it did not justify a captious quitting because of offended taste. Plaintiff urges that this case is not like those where one is employed to do labor for a specified time and quits without cause before the expiration of the time. He likens his employment to house building contracts and says that he should be allowed to recover on a quatvtum meruit. Assuming the petition to be a declaration on a quantum meruit under the view taken in Glover v. Henderson, 120 Mo. 367, yet the employment of plaintiff was to do a definite work, not at all to be likened [373] to a building contract, though, it is true, it was work about a building. Without any proper excuse he quit that work in the midst of it. He ought not to be allowed to recover on quantum meruit any more than he would if he had agreed to repair a vehicle and wilfully abandoned it when half completed. [Gruetzner v. Aude Co., 28 Mo. App. 263; Lathrop v. Mayer, 86 Mo. App. 355; Paul v. Minneapolis Co., 87 Mo. App, 647.] In the first of these cases Judge Rombauer said that “One who sues upon a contract for personal services must show that the services have been fully performed or that their performance has been prevented by the act of God, or the unwarranted act of his employer. In case of wilful abandonment of the contract by the servant or employee there can be no apportionment of the contract. Such has always been the rule at common law, both as to menial services and services in the nature of a bailment locatio operis faoiendi. In the latter case if the thing is left imperfect and unfinished by the fault of the workman he can recover nothing, but if not by his fault he shall have compensation pro tanto, subject to set-off. [Wood on Master & Servant, 291, 293, 294, note 2; Edwards on Bailments, sec. 437.] Such has always been the law of this State, whether the contract was one for a definite period or for the performance of a particular service.” We do not regard the authorities cited by plaintiff as applicable to the case as made by the evidence. The judgment is affirmed. All concur.