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Furst v. Board of Education

JANUARY 21, 1959.

W.H. FURST, D/B/A FURST AND TILTON, PLAINTIFF-APPELLEE,

v.

BOARD OF EDUCATION, HIGHLAND PARK HIGH SCHOOL DISTRICT NO. 113, LAKE COUNTY, ILLINOIS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lake county; the Hon. BERNARD M. DECKER, Judge, presiding. Reversed with judgment here.

PRESIDING JUSTICE SPIVEY DELIVERED THE OPINION OF THE COURT.

Plaintiff-appellee recovered a judgment in the amount of $34,176.54 in the Circuit Court of Lake County, Illinois, for architectural services. Trial was by the Court, a jury having been waived. From this judgment defendant-appellant appeals.

The various transactions and events covered a period of time from May 1948 to August 1953. A rather detailed recitation of the pertinent facts is necessary.

In the Spring of 1948, the defendant determined that it would enter into a building program for two schools in Highland Park and Lake Forest, Illinois, both under their jurisdiction. The president of the Board, Harold W. Norman, discussed the program with John A. Armstrong, a partner in the firm of Armstrong, Furst & Tilton. As a result of these conversations and certain inspections made by plaintiff's firm, a contract was entered into between Armstrong, Furst & Tilton and the defendant, dated June 15, 1948, and designated as "The Standard Form Of Agreement Between Owner and Architect." The relevant provisions are as follows:

"This Agreement made the 15th day of June in the year Nineteen Hundred and Forty-eight by and between Board of Education, Deerfield-Shields Township High School District, hereinafter called the Owner, and Armstrong, Furst & Tilton . . ., Witnesseth, that whereas the Owner intends to erect additions to Highland Park and Lake Forest High Schools.

"The Architect agrees to perform, for the above-named work, professional services as hereinafter set forth.

"The Owner agrees to pay the Architect for such services a fee of six (6) per cent of the cost of the work with other payments and reimbursements as hereinafter provided, the said percentage being hereinafter referred to as the `basic rate' and is to apply to this work except as modified elsewhere in this contract.

"The parties hereto further agree to the following conditions:

1. The Architect's Services. — The Architect's professional services consist of the necessary conferences, the preparation of preliminary studies, working drawings, large scale and full size drawings; specifications, large scale and full size drawings; the drafting of forms of proposals and contracts; the issuance of certificates of payment; keeping of accurate accounts, the general administration of the business and supervision of the work.

3. Separate Contracts. — . . . .

4. Extra Services and Special Cases. — If the Architect is caused extra draughting or other expense due to changes ordered by the Owner, . . ., he shall be equitably paid for such extra expense and the service involved.

If any work designed or specified by the Architect is abandoned or suspended the Architect is to be paid for the services rendered on account of it.

5. Payments. — Payments to the Architect on account of his fee shall be made as follows, subject to the provisions of Art. 4:

Upon completion of the preliminary studies, a sum equal to 20% of the basic rate computed upon a reasonable estimated cost.

Upon completion of specifications and general working drawings (exclusive of details) a sum sufficient to increase payments on the fee to 75% of the rate or rates of commission arising from this agreement, computed upon a reasonable cost estimated on such completed specifications and drawings, or if bids have been received, then computed upon the lowest bona fide bid or bids.

From time to time during the execution of work and in proportion to the amount of service rendered by the Architect, payments shall be made until the aggregate of all payments made on account of the fee under this Article, but not including any covered by the provisions of Article 4, shall be a sum equal to the rate or rates of commission arising from this agreement, computed upon the final cost of the work.

6. Survey, Borings and Tests. — . . .

7. Supervision of the Work. — . . .

8. Preliminary Estimates. — When requested to do so the Architect will furnish preliminary estimates on the cost of the work, but he does not guarantee the accuracy of such estimates.

9. Definition of the cost of the Work. — . . .

10. Ownership of Documents. — Drawings and specifications as instruments of service are the property of the Architect whether the work for which they are made be executed or not.

11. Successors and Assignments. — The Owner and the Architect, each binds himself, his partners, successors, executors, administrators, and assigns to the other party to this agreement, and to the partners, successors, executors, administrators, and assigns of such other party in respect of all covenants of this agreement.

Except as above, neither the Owner nor the Architect shall assign, sublet or transfer his interest in this agreement without the written consent of the other.

12. Arbitration. — . . .

13. . . .

14. . . .

The Owner and the Architect hereby agree to the full performance of the covenants contained herein."

The school buildings could be erected by defendant only if a bond issue were approved at a public referendum, and it was necessary to have the architect's plans and cost estimate before the issue could be lawfully submitted to the referendum. As a result of an interchange of letters between the parties, the agreement of June 15, 1948, was amended by letter dated February 7, 1949, ...


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