Jenks v. Town of Terry

delivered the opinion of the court.

The town of Terry, through its municipal authorities, contemplated constructing a water and electric light plant. Advised of this intention, Mr. denles, a civil engineer, proposed to the municipal board to “make preliminary survey and estimate of cost of water and electric light plant” without charge. On October 17, 1901, the board accepted this proposition, and Mr. denks was retained “as engineer for the work on a five per centum basis on cost of plant.” Accordingly Mr. denks prepared the “preliminary survey and estimate of cost” and submitted the same to the municipal authorities, and it was by them approved on October 17th. Subsequently the municipal board decided to erect the plant, and, having taken., all preliminary steps, such as the issuance of bonds to defray the expenses *370of construction and the like, Mr. Jenks was contracted with as engineer upon the basis set out in his original proposition. Accordingly, on January 13, 1902, Mr. Jenks apjoeared before the board and submitted “plans and specifications for the water Avorks plant in contemplation by the town of Terry.” These plans and specifications Avere examined, and by order of the board formally approved and adopted, and contract Avas let in accordance therewith, for the contract price of $3,899, exclusive of the well. After this, from causes not necessary to recite, the plan of erecting the municipal plant was abandoned. Negotiations for a settlement haA'ing failed, Mr. Jenks filed this suit to recover the proportionate amount of the commissions due him under his contract Avith the board.

The failure to erect the municipal plant Avas in no respect due to any fault or negligence on the part of Mr. Jenks. He did all that his contract required him to do. He prepared the “preliminary survey and estimate of cost” free of charge. He prepared the “plans and specifications” Avhich were adopted by the board, and Avas ready to supervise the construction and installation of the plant, if the board had perseArered in its intention to establish the same. He is entitled at least to the amount due for services actually rendered. There is no denial that the proportion of the total commission Avhich he claims in the instant case is justly due him under the uniform custom of engineers in similar cases. The “plans and' specifications” is in no sense to 'be confused Avith a “preliminary survey and estimate of cost.” They are entirely distinct and dissimilar things. The one is only a measurement and survey of the territory to be covered by the contemplated plant and an approximate estimate of cost. The other is an accurate, detailed Avorking plan, showing materials to be used and manner of construction. Hpon the face of this record, considering only the competent evidence in the record, Mr. Jenks Avas entitled to a peremptory instruction in his favor for the amount of the three per cent commissions sued for.

Reversed and remanded.