Opinion
Department One
Appeal from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a new trial. J. C. B. Hebbard, Judge.
COUNSEL:
Garrett W. McEnerney, for Appellant.
Boyd & Fifield, for Respondent.
JUDGES: Garoutte, J. Harrison, J., and Van Fleet, J., concurred.
OPINION
GAROUTTE, Judge
This is an action to recover for the services of an architect. Judgment went for plaintiff, and defendant appeals from the judgment, and also from an order denying her motion for a new trial. Plaintiff's contract was to furnish all necessary general drawings, specifications, and details for the construction of a building upon a commission of two and one-half per cent upon the total cost. He was paid three thousand seven hundred and fifty dollars under the contract, and seeks to recover the balance.
Defendant's first claim is that under such contract plaintiff was only entitled to recover his commissions upon the cost of construction as far as the building had proceeded at the time his employment was terminated. This contention cannot be sustained. Plaintiff had nothing to do with the construction of the building. His contract was simply to furnish the plans, drawings, and specifications, and this he did. The actual construction and cost of construction are only material to him as fixing the amount of defendant's liability for the services rendered. Again, the complaint also charged upon a quantum meruit, and the court found the value of plaintiff's services at the amount fixed by the judgment. This would seem to dispose of any question upon such contention.
The defendant by her pleading set up a counterclaim to the amount of five hundred dollars. This counterclaim is based upon allegations to the effect that she, defendant, employed plaintiff as an architect to furnish the plans, etc., for the erection of a certain building, upon a site where a building of hers was then standing, which was occupied by tenants; that plaintiff improperly notified a reporter of the San Francisco Chronicle of her intention to erect a building upon such site, and also furnished the paper a drawing of said building; and it is alleged that these things were published in that paper as a matter of public news, and thus came to the knowledge of defendant's tenants. It is charged that, by reason of these facts coming to their notice, some of them removed from her building, thus depriving her of future prospective rents and profits, and damaging her to the extent of such prospective rents. We attach but little importance to this contention. Aside from the remoteness of the damages sought to be recovered, and their contingent and speculative character, matters which we will not discuss, there is no cause for relief stated. There is no allegation that plaintiff agreed not to make disclosure of defendant's intentions to erect the building, nor was he requested not so to do. Neither did the law cast upon him any duty to keep his knowledge as to these matters to himself. It necessarily follows that no cause of action is stated. The relations arising between the plaintiff and defendant came solely from the contract, and we cannot see that they were in any sense confidential. Section 1881 of the Code of Civil Procedure treats of confidential relations existing between certain parties, but the facts of the present case do not bring it within the provisions of that section. We do not think [43 P. 963] the disclosures here made were any more confidential than if the dealer furnishing the lumber, or the contractor who was to do the work, had given notice to the public that the building was to be erected.
It would appear that the principal controversy in this case centers around the location of a certain stack of chimneys, and damages are claimed from plaintiff for an alleged mislocation of these chimneys upon the plans. The building was to be seven stories in height. The six upper floors were arranged for offices, and each was a duplicate of the other. During the progress of construction the seventh floor was changed to a photographic gallery. The chimneys were located according to the original plan, which contemplated this floor to be devoted to offices, and were not located in the proper place for a gallery, and this fact was the occasion of the controversy arising between these parties. The trial court found in favor of plaintiff upon the charge of negligence, and, as the evidence is conflicting, the judgment will not be disturbed upon this ground.
The claim of defendant at the trial of the case was that plaintiff furnished a gallery plan for the seventh floor, locating the chimneys in the partition wall, and that when actually located they came through the floor at a distance of five feet therefrom. But this unfortunate condition was not attributable to the architect, and the court has so found. It arose from the delay practiced by the defendant in arriving at a determination to change the seventh floor from an office floor to that of a gallery. For at the time this change was determined upon the chimneys had been erected by the contractors according to the original plans. This fact is undisputed. When the gallery plan was adopted the chimneys were already there, the mischief was done, and there was no remedy for it. It may be assumed, for present purposes, that prior to this time plaintiff had furnished a gallery plan, showing the location of the chimneys to be in the partition wall, but at that time the chimneys had not been built, the contract for their building had not been let, and then they could have been placed according to such plan.
A witness (Sullivan) was sworn and placed upon the stand, when counsel for defendant said: "I want to prove that Mr. Sullivan got this sketch from Mr. Havens between the 18th and 20th of July, 1892." (Counsel referred to a lithographic sketch of the gallery, which was sent East to various photographers for the purpose of securing a tenant, but was not and did not purport to be a copy of defendant's exhibits D and E.) An objection was sustained to the offer. Appellant's attorney stated at the time that he offered this evidence for what it was worth. The trial court concluded that as evidence it was worth nothing, and we think the conclusion right. The offer to prove this sketch was too general to be of any service. If the evidence had been introduced as offered, it would have been entirely too vague and indefinite to have given the court any light upon the issue then under consideration. And under any circumstances, in view of all the other evidence in the case, it is a matter of too slight importance to demand a reversal of the judgment. We find nothing further in the record demanding our consideration.
For the foregoing reasons the judgment and order are affirmed.