WESLEY D. HUNTER, Appellant,
JOHN VICARIO, Respondent.
APPEAL by the plaintiff, Wesley D. Hunter, from a judgment of the Supreme Court in favor of the defendant, entered
in the office of the clerk of the county of New York on the 22d day of December, 1910, upon the dismissal of the complaint by direction of the court at the close of plaintiff's case on a trial at the New York Trial Term.
Theodore B. Richter, for the appellant.
Louis O. Van Doren, for the respondent.
The defendant was the owner of the premises known as Nos. 130-132 Worth street in the city of New York and desired to make alterations therein. For that purpose he had received certain specifications from P. Roberts & Co., builders, with an estimate for the work thereunder. Thereafter he had negotiations with plaintiff, an architect with an experience of upwards of twenty years, as the result of which negotiations defendant wrote plaintiff as follows:
'NEW YORK, July 17th, 1907.
'W. DARWIN HUNTER, Esq.,
'60 Wall Street,
'New York City:
'DEAR SIR.--Following our conversation of yesterday I put in writing what I told you.
'I desire to have a copy of the specifications as you will suggest for the alterations on the building at 130-132 Worth St. sent to several contractors.
'I will select the bottom figure, and any amount which you can save on the bottom figure will be shared between us in equal part. I agree to pay the bills as soon as they are presented, if necessary, or you can get the best terms, not being necessary for me to pay cash if there is no profit.
'Yours very truly,
To this plaintiff sent the following reply:
'NEW YORK, July 19, 1907.
'JOHN VICARIO, Esq.,
'90 Centre Street, City:
'DEAR SIR.--In reply to your favor of July 17th, I beg leave to say that I will undertake the matter of drawing up plans and specifications for the alteration of your building at
130-132 Worth Street and obtain estimates thereon, as you suggest, from good reliable builders, with the understanding that I am to have as my compensation one-half of the money saved you on the lowest estimate which I obtain.
'I will have plans, specifications and estimates ready to submit to you on or about September 4th.
'Yours very truly,
'W. D. HUNTER.'
These two letters are claimed to constitute the contract between the parties. Thereafter the plaintiff proceeded to make sketches and measurements of the building, and to prepare plans and specifications for the work of altering the same which differed, in certain material particulars, from those previously prepared and the cost of performing which exceeded the prior estimate. These plans and specifications were furnished to defendant, who retained them, and though suggesting certain changes which added to the expense, never rejected them or suggested that they were unsatisfactory to him. The plaintiff then proceeded to obtain estimates from various contractors, as he was called upon to do under his contract, and succeeded in getting certain bids for the entire work called for in the plans and specifications, the lowest whereof was that of Isaac A. Hopper & Son, in the sum of $26,480. Defendant desired to have Roberts & Co. bid on the work, as he deemed them reliable and did not want any one else to get the contract unless the work was done more cheaply, but he notified the plaintiff on November 12, 1907, that they would not bid on the work. In the meantime plaintiff had interviewed some fifteen or twenty sub-contractors, from whom he obtained estimates on the performance of parts of the work appropriate to their respective trades, thus furnishing a basis for the ultimate saving of expense between the cost of the actual doing of the ...