Clark v. Madeira

George Rose Smith, Justice. In 1968 the appellees, A. F. Madeira and his wife, who were then living in Florida, bought a fairly old house in Eureka Springs, Arkansas They employed one of the appellants, Maruitz E. Friberg, an architect, to prepare plans and specifications for extensively remodeling the house and to supervise the actual remodeling job. The Madeiras employed the other appellant, Mack Clark, as the principal' contractor for the project. The architect, for his services, was to receive 6% of the total cost of the work. The contractor was to receive his actual expense for labor and material, plus 10%. Written contracts were drawn by Friberg and were executed by the Madeiras with Clark and with three subcontractors. The contracts contemplated that the entire job would cost about $23,000 and would be completed in 90 days. The job eventually cost about $43,000 and was completed in about 15 months. The Madeiras brought this action for damages for breach of contract, asserting negligence, incompetence, poor workmanship, and unnecessary delay in the completion of the project. The jury returned a verdict for $5,000 against Friberg, the architect. The verdict against Clark, the contractor, was for $2,344.01, which was the same amount that the jury found to be still owed by the Madeiras to Clark upon his contract. The parties have not brought up the complete record, but apparently the issues were submitted to the jury upon ten special interrogatories. For reversal Friberg first contends that the court erred in not submitting to the jury an interrogatory to determine the amount still due to Friberg upon his 6% fee. No error is shown, for the record before us does not indicate that there was any request for the court to submit such an interrogatory. Christensen v. Dady, 238 Ark. 577, 383 S.W. 2d 283 (1964); Mizell v. West, 299 Ark. 224, 314 S.W. 2d 216 (1958). Alternatively, Friberg argues that the court should have granted his motion for judgment notwithstanding the verdict. Such a motion would have been proper if the undisputed testimony had established Friberg’s right to recover. Spink v. Mourton, 235 Ark. 919, 362 S.W. 2d 665 (1962). Friberg is mistaken, however, in arguing that he was in any event entitled to a 6% fee upon the total cost of the project. One cannot profit by his own wrong. Consequently an architect whose cost estimate is culpably below the actual cost of the job is not entitled to a commission upon the excess. Miller v. San Francisco Church Ext. Soc., 125 Cal. App. 85, 13 P. 2d 824 (1932); Edwards v. Hall, 293 Pa. 97, 141 A. 638 (1928); Headlund v. Daniels, 50 Utah 381, 167 P. 1170 (1917). Our decision in Almand v. Alexander, 180 Ark. 947, 23 S.W. 2d 611 (1930), is essentially to the same effect. We must conclude that the motion for judgment notwithstanding the verdict was correctly denied. Clark, the contractor, insists that the jury’s verdict against him for $2,344.01 is not fully supported by the evidence. With that contention we agree. The Madeiras asserted causes of action against Clark both for his failure to perform the work according to the plans and specifications and for his failure to complete the work within the time fixed by the contract. Both issues were submitted to the jury by special interrogatories. In response to Interrogatory 6 the jury found that Clark had performed the work and furnished the materials, in compliance with the contract. Pursuant to that finding the jury further determined that the Madeiras still owed Clark $2,344.01 on the contract. By Interrogatory 10 the jury found that Clark did not perform the contract (as modified by the parties) within the time specified. Damages caused by that delay were fixed by the jury at $2,344.01. We do not agree with the appellees’ argument that in response to Interrogatory 10 the jury could have awarded damages for breach of contract in addition to damages for delay. The jury had already determined, in response to Interrogatory 6, that Clark performed the contract according to the plans and specifications. That finding left in issue, under the interrogatories, only the possibility of damages for delay. Upon that question the proof as abstracted sustains only an award of $342.16 for the rental of accommodations occupied by the Madeiras while they were forced to wait for the completion of the remodeling project. No other compensable pecuniary loss is shown. Although there is proof that Clark was unnecessarily slow in completing the work, the jury apparently was not furnished with sufficient facts to support a determination of the pecuniary loss that resulted from Clark’s slowness. The judgment against Clark must therefore be reduced to $324.-16, which leaves a net award of $2,019.85 in Clarks favor. In considering the case we have been handicapped by the fact that the parties have included in the record only the testimony adduced by the Madeiras. We have considered in conference the possibility of asking the Madeiras to supply the rest ot the testimony, but such a request would not be justified in the situation before us. The appellants at first designated for inclusion in the record only the Madeiras’ testimony on chief. The appellees then designated the rest of the testimony, but the appellants failed to comply with that designation when they lodged the record here. In that situation the appellees could have moved for a dismissal of the appeal, if the appellants refused to supply the deficiency. Ark. Farmers Assn. v. Towns, 232 Ark. 997, 342 S.W. 2d 83 (1961). Instead, the appellees aquiesced in the appellants’ failure to bring up the complete record, doubtless because the missing testimony would not have been beneficial to the appellees. Hence we must treat the record as having been abbreviated without objection, which precludes us from assuming that the jury’s verdict is supported by matter omitted from the record. Ark. Stat. Ann. § 27-2127.6 (Repl, 1962); Southern Farmers Assn. v. Wyatt, 234 Ark. 649, 353 S.W. 2d 531 (1962). Modified and affirmed. Byrd, J., dissents.