Rhodes v. Clute

Babtch, J. (after stating the facts): The principal and most important contention on the part of the appellants appears to be that the plaintiff was a contractor, and had agreed to erect the building for a stipulated sum, and that therefore he was neither entitled to charge for superintending his contract, nor for his own personal labor upon the building, and consequently was not entitled to a lien on the premises; and this regardless of the changes made in the building after the first contractual relations between him and the oymer. If there was no abandonment of the contract because of the changes made in the plans for the building, this contention is undoubtedly correct; for if, under an agreement, he was to furnish the material and labor and erect the house at an agreed price, then he was bound by the terms of the contract, and is neither entitled to compensation for superintending the work, nor for his own labor. But the respondent maintains that such was not the case, that the contract was abandoned by the parties, and that therefore he was entitled to recover on a quantum meruit, and also entitled to a lien on the property. It will be noticed from the facts above stated that, in the first instance, there was a verbal contract between the parties for the construction of a frame dwelling house at the agreed price of $3,800. Such a house as was thus indicated by the plans and agreed upon, the plaintiff would have been bound to build for the stipulated sum; but was he required to do more, and, at the mere suggestion of the owner, build a brick instead of a frame house? Surely, [141] as shown by the record, no brick house was included within the terms oí the contract. Nothing of the kind appears to have been thought of until, after the contractor had entered upon the performance of the contract, and had completed the foundation for the frame building, the owner, of her own volition, without any agreement as to the price therefor, directed the building of a brick instead of a frame structure. Then other material changes were made in the designs of the building, all at the instance and under the directions and orders of the owner, until the contemplated comparatively unpretentious frame house was raised into a pretentious brick structure, costing several thousand dollars more than the one for which the contract had been made. How, then, with such facts disclosed by the evidence, can it successfully be maintained that the owner is not to be charged with what the construction of such a building is reasonably worth, or that the cost, as to him, must be governed by the terms of the original contract, although nothing was said concerning the price of the brick building when the changes were made? The acts of the owner herself negative such a contention, for it is clearly shown that she paid out large sums of money for material and labor, over and beyond the terms of the contract, and we cannot assume that the respondent undertook to erect a kind of building which was not in the minds of the parties at the time of their entering into the agreement. The changes and additions made did not merely amount to extras, bub were so material, both in price and construction, as to amount to an abandonment of the contract, and the creation of a new one, without an agreed price for the erection of the structure under the altered plans. Where the owner of premises and a builder enter into a contract for the erection of a building, at an agreed price therefor, and, after part [142] performance by the builder, such material departures from the plans and specifications are made, at the instance of the owner, as will result in a new and different undertaking, without any agreement as to the price for such departures, the builder may recover for the reasonable value of the material and labor furnished in accordance with such new undertaking, and will not be limited bo the price agreed upon in the original contract. Cook Co. v. Harms, 108 Ill. 151; Smith v. Salt Lake City, 83 Fed. 784; Delafield v. Village of Westfield, 77 Hun 124; Bridge Co. v. McGrath, 134 U. S. 260. From the foregoing considerations, and in view of the facts in evidence, we are of the opinion that the respondent, although superintendent of the construction of the building, had the right to recover for the work actually performed by him, that he had a right to a lien therefor on the premises, and that his notice of lien filed suffi-ciently complied with the statute then in force. The questions raised respecting the lien in this case we do not think are well taken, under the facts disclosed by the record. Nor, owing to the conclusions reached above, do we deem a separate discussion of them, or of any other question presented, necessary. There appears to be no reversible error in the record. The judgment is affirmed. ZáNE, C. J., and Miner, J., concur.