Summary
In Kempf v. School District of Fredonia, 6 Wis.2d 95, 94 N.W.2d 172 (1959), the court considered a case in which a school district hired an unlicensed architect.
Summary of this case from Schlueter v. LatekOpinion
December 3, 1958 —
January 2, 1959.
APPEAL from a judgment of the county court of Ozaukee county: PETER M. HUIRAS, Judge. Reversed.
For the appellant there was a brief by Runkel Runkel of Port Washington, and oral argument by Paul D. Runkel.
For the respondent there was a brief by Grady Grady of Port Washington, and oral argument by Stuart G. Grady and Warren A. Grady.
Action to collect architect's fees alleged to be owed by the School District to Ollie C. Kempf, the plaintiff. The School District had already paid $750 and counterclaims for the refund of that payment. Trial was to the court. The judgment granted the plaintiff $247.80, being $215 for such fees, and disbursements of $32.80.
Plaintiff is not a registered architect but he submits that he comes under exemptions granted him by sec. 101.31 (7), Stats., which allow Kempf to practice the profession of architecture and be paid for his services by reason of Kempf being a member of a firm which includes a registered architect.
The trial court found that Kempf and a registered architect named Schroeder performed the services for the School District; that a proffered written contract for such services was never executed by the district and the parties disagreed as to the amount for services involved; that the architect, Schroeder, was paid by plaintiff $60 for the architect's direction in the preparation of plans and specifications which service by Schroeder included placing his architectural seal upon the plans prior to their approval by the industrial commission of Wisconsin and the commission approved such plans; that the plans bore the printed signature of Schroeder.
The court's conclusions of law were that Kempf is a proper party plaintiff; there was no meeting of the minds resulting in a contract as to compensation; that plaintiff is not barred from recovery because it was not conclusively shown that such portions of the work as could be handled only by an architect were not done under the supervision and control of the registered architect; that the architect's signature on the contract tendered by Schroeder and the plaintiff, the architect's seal on the plans and specifications, and the approval by the industrial commission are a sufficient compliance with statutory requirements; that a just and equitable recovery is $215.
The evidence shows that Kempf entered into some conversations or negotiations with members of the school board for enlarging the public school building. Kempf considered that he was authorized to prepare plans and specifications for a structure costing $17,000 to $18,000. There is no evidence that Kempf formerly had any association with Schroeder, a registered architect, but entered into some arrangement with Schroeder for checking Kempf's work and approving the results. A contract in form customarily used by architects was signed by Schroeder, architect, and Kempf, designer, for the plans and specifications for such a building. This contract was presented to the School District but was never signed.
Kempf testified that Schroeder looked over Kempf's work and approved it as an architect and set his architectural seal upon the plans. Thereafter the plans were submitted to the industrial commission and were approved by the commission. There are no signatures upon the plans or specifications by Schroeder or any other architect. The plans bear the printed legend on the blueprints that Schroeder is the architect and Kempf is the designer, together with other pertinent information concerning the plans.
The bids were opened August 5, 1955. The bids ran approximately $25,000 and the school board determined not to complete the designed building. The plaintiff and the school board agree that on completion of the building the architect's fee would be six per cent of the cost and they agree that if the building is not completed the fee will be four and one-half per cent, but Kempf says that the agreement was for him to be paid four and one-half per cent of the amount of the bids, while the board says it was to pay four and one-half per cent of Kempf's original estimate of $17,000. The action by Kempf is to collect four and one-half per cent of the total bids minus $750 which the School District paid him prior to beginning the action. His complaint is for approximately $440.
Sec. 101.31 (7), Stats., prohibits the practice of architecture by a person not registered as an architect. The statute permits a firm, corporation, or partnership or joint stock association to practice architecture when a nonregistered architect is associated with a registered architect who has responsible direction of the architectural work. In this instance the term "firm" means a business association although it is not otherwise properly described as a partnership, corporation, or joint stock association. Here the proffered contract was in the name of Schroeder, architect, and plaintiff Kempf, designer. We consider this enterprise to be one conducted by a "firm" but we seriously doubt that Kempf, not the firm, can then sue as an individual to collect the fee without any further recognition of any rights of such "firm." The pleadings show Kempf to be the sole plaintiff and in Kempf's testimony it appears only that Kempf paid Schroeder for checking Kempf's work.
At any rate, if a firm practices architecture ". . . Any and all plans, . . . and specifications shall carry the signature of the registered architect. . . ." Sec. 101.31 (7) (a), Stats. "If the signature of any person is required by law it shall always be the handwriting of such person or if he is unable to write, his mark or his name written by some person at his request and in his presence." Sec. 370.01 (38), Stats. 1953, now sec. 990.01 (38). Such a signature is completely lacking.
Furthermore, to engage in the practice of architecture as a firm, partnership, or corporation, the registered architects in such organization must have the majority interest in the firm, partnership, corporation, or joint stock association. Sec. 101.31 (7) (b), Stats. Kempf testified that Kempf's time and Schroeder's time would be paid for out of the fee, as between themselves, and after such time payments were satisfied the remaining fee would be divided.
The proof does not show that the registered architect is the majority proprietor of the firm. We conclude that the "firm" lacks the statutory requirements for practicing architecture in providing plans and specifications, nor could the firm's unregistered member, specifically, the plaintiff, then engage in the practice or collect fees for such services.
The judgment does not mention the counterclaim in which the School District attempts to recover the $750 originally paid to Kempf. We infer that the trial court intended to dismiss the counterclaim.
There is no doubt that Kempf performed much work for the district and we may regard the fee already paid as a gratuity which the district cannot recover. Appellant submits that recovery may be had of that which plaintiff obtained illegally. If the transaction was criminal, as counsel says, the district was particeps criminis. We will leave them here as we found them.
By the Court. — Judgment reversed. Action and counterclaim dismissed.