[*303] 1986 January 30
(KALLIS , D.J.)
IN THE DISTRICT COURT OF NICOSIA
Savvas Chr. Savvides,
Plaintiff,
v.
Panayiotis Eliades,
Defendant.
(Action No. 936/84).
Architect - Preparation of probationary or sketch plans - No agreement for payment - Defendant not using the plans - Whether architect entitled to remuneration - Section 70 of the Contract Law, Cap. 149.
A. Drakos, for the Plaintiff
J. Erotocritou, for the Defendant.
JUDGMENT
The following judgment was delivered by:
KALLIS, D.J.:
The Claim:
The claim of the plaintiff in this action was for £500.- being amount due for agreed and/or reasonable remuneration for professional services. [*304]
The Pleadings:
According to the statement of claim, on or about July, 1981, the defendant instructed the plaintiff, who is a licensed architect, to prepare plans for the construction of a building on a plot of land of his at Makedonitissa at the agreed and/or reasonable remuneration of £500, that is, 0.5% on a pre-estimated cost of £100,000. the plaintiff performed the above work and delivered the said probationary drawings (προσχέδια) to the defendant but the latter failed to pay any amount to the plaintiff.
On the other hand, the defendant contended that when in July, 1981 the plaintiff visited his office in order to buy a car and noticed the sketch plans for the erection of a house, which were prepared by another architect, he (the plaintiff) mentioned to the defendant that he is a designer; and without any obligation (δέσμευση) and/or remuneration undertook to prepare a probationary plan (προσχέδιο) of his own imagination (φαντασίας). In fact, after some time he delivered to the defendant a plan but the latter never asked plaintiff to prepare plans for him on remuneration. Finally, defendant contended that the house he constructed did not cost £100,000.
The Evidence:
In giving evidence in support of his claim, the plaintiff said that he met defendant in the road next to his (the plaintiff’s) office who told him that he [*305] had in mind to build on his plot at Makedonitissa and asked him to pass from his office to be given the title-deed and the site plan and prepare probationary plans. In fact, plaintiff met the defendant at the latter’s office 2 - 3 days later - in July 1981 - whereupon he was told by defendant that he intended to construct two semi-detached dwelling houses (διπλοκατοικία) for his two daughters. Thereafter, plaintiff after making the relevant study, he prepared probationary plans for shops and 6 flats above the shops and 15 days later he delivered them to the defendant. Following the delivery of the plans he was awaiting for the defendant’s observations thereon, but defendant did not respond. After considerable time and whilst passing from the site, he noticed that there has been constructed thereon a part of a ground-floor semidetached dwelling house. He did not enter into any agreement with the defendant regarding the amount of his remuneration but in their profession the usual remuneration for probationary plans is 1% on the cost of the construction and he charged ½% on an estimated cost of £100,000.
To a question by the court the plaintiff replied that he had not mentioned to the defendant before the latter had instructed him to prepare the plans that he would do so on remuneration and he bases his claim on the practice of architects.
The defendant in his sworn testimony said that he met the plaintiff when the latter went to his office and was interested in purchasing a car. When plaintiff [*306] noticed sketch plans on defendant’s office desk, he volunteered to prepare plans for the defendant and he said: “I am an architect too, if you wish I shall prepare probationary plans as well for you because from what it appears from the title-deed, the site is a big one, you can erect a big construction thereon and it is a pity to spoil it”. Thereupon, defendant told him that for the time being he could not indulge in the construction of big buildings because he was a refugee and plaintiff said: 111 shall prepare a probationary plan for you (προσχέδιο) without any obligation (αδέσμευτα) and if you decide to implement it, you tell me about it and I complete it”. Defendant was hesitating to instruct plaintiff to proceed with the preparation of plans because he was collaborating with his own architect - Mr. Photiades, but as plaintiff insisted that the plan will be prepared without any obligation and remuneration, defendant consented. Some time later, the plaintiff delivered to him the plans - exh. 3 – whereupon defendant told him that he will look at the plans and reply to him, adding that he is not intending to construct such a building. After the lapse of considerable time he constructed a ground-floor dwelling house on half of the building site on the basis of the plans of his architect - Mr. Fiakas, who works with Mr. Photiades. Sometime before the filing of the action, plaintiff telephoned to him and inquired in a threatening manner as to why defendant had built a house and did not instruct him (the plaintiff) to prepare the plans. Defendant [*307] replied “as you had seen, I had already plans”. Had plaintiff told him that he would ask for remuneration, he would not have instructed him to prepare the probationary plans. He finally said that he never made any use of the plans in question - exh. 3.
Issues for consideration:
Having regard to the pleadings and the evidence, the success or failure of plaintiff’s claim depends on the answer which will be given to the following questions :
(a) whether defendant instructed the plaintiff to prepare the said plans; and
(b) whether the defendant agreed to pay.
Regarding issue (a) above, there was consensus amongst the parties that the defendant instructed or authorised the plaintiff to prepare the plans in question; and I so find. Regarding issue (b), plaintiff himself admitted that no reference to any remuneration was made and he based his claim on the practice of architects. On the other hand, the defendant contended that plaintiff expressly told him that he would not be paid. The issue, therefore, falls to be decided on the credibility of the two witnesses; and after anxiously considering the evidence in the light of the demeanour of the two witnesses, I have no hesitation whatsoever in accepting [*308] the evidence of the defendant and rejecting that of the plaintiff, because the former has impressed me much more favourably as a witness. I, therefore, find that the defendant has not agreed to pay for the plans. I further find by relying on the evidence of the defendant that he never made any use of the plans - exh. 3 - and that he built a ground floor dwelling house on the half of his site making use of the plans of Photiades - Fiakas.
Is plaintiff, in view of my above findings, entitled to the amount claimed or to any amount? Having rejected the evidence of plaintiff, I will in the absence of any other evidence, deal with the claim by having regard to the legal principles governing the matter. In Hudson’s Building and Engineering Contracts, 10th ed., the following are stated at p. 180 under the heading “Remuneration of Architects”, sub-heading “(1) For completed Services (a) by special contract
(b) Implication of reasonable remuneration
(c) Work done on approval and probationary drawings.
“Where work is done on approval, or is in the nature of a proposal, sketch, or design submitted for approval (or probationary drawings, as they were called in Moffatt v. Dickson, (1853) 13 C.B. 343) or with the intention of interesting the client in a project which he may be only tentatively considering, the architect may “have no claim unless the design is actually [*309] approved or used. Such designs are in the nature of offers, or tenders, leading up to a possible contract, but for which there is no obligation to accept or pay”.
Further in Building Contracts by Keating, 4th ed., the following are stated at p. 220 under the heading “Remuneration”:
Employer liable
The architect must in the absence of express terms look to the person who employed him for payment.
The right to remuneration
“There is a presumption that an architect is entitled to be paid something for his work for, generally speaking, people who do work for others expect to be paid for it’. If there is an agreement for employment and the employer is to fix the amount, the employed person may, it seems, obtain a reasonable payment. Where sketch plans and probationary drawings are sent in by way of tender, or subject to approval, and they are not accepted or approved the architect is not, it seems, entitled to be paid for such work, unless there is an express agreement to pay”.
In this case, having regard to the above legal position, to my finding that the plans were not used, to my finding that the defendant never agreed to pay [*310] the architect and to my finding that he used the plans of his former architects, I arrived at the conclusion that plaintiff is not entitled to be paid for his work and his claim must, therefore, fail.
Having concluded as above, I would add that the legal position enunciated in the above text-books is akin to the one arising under s.70 of the Contract Law, Cap. 149, whereby among the conditions required 1 to establish a right of action at the suit of a person who does anything for another is the condition that “the person for whom the act is done must enjoy the benefit of it”. (Vide p. 426 of the Indian Contract and Specific Relief Acts by Pollock and Mulla). And in this case, indeed, the defendant did not enjoy the benefit of the plans.
For all the above reasons the action must fail with costs to be assessed by the Registrar.