STEVENSON v. SAN DIEGO COUNTY (1945)

A rehearing was granted in this case by the court on its own motion after a petition for rehearing had been received too late for filing. It was argued that in reducing the judgment by $15,000 in our former opinion (—— Cal.App.2d ——, 152 P.2d 644) we had gone beyond the issues made in the pleadings, raised during the trial, and presented in the briefs. We directed that additional briefs be filed on these questions. They have been filed and carefully considered and we have again reviewed the entire record.

This is an appeal from a judgment for $21,539.10 which plaintiff recovered for services as an architect rendered to the county of San Diego under two written contracts, one dated February 15, 1937, and the other January 20, 1939.

Under the earlier contract defendant employed plaintiff to prepare preliminary plans and estimates, and working plans and specifications for the erection of a group of buildings for the county tuberculosis sanatorium on the site of the Vauclain Home in the city of San Diego, and to supervise construction for a fee of 8 per cent of the cost of each building. The Vauclain Home was a part of the county hospital but occupied grounds separate and apart from the main group of buildings.

It was provided that when the preliminary studies for the construction of the buildings and preliminary estimates of costs were prepared they should be submitted to the board of supervisors; that when they were approved, either by signatures of a majority of the board or by a resolution passed by the board, plaintiff would be entitled to receive 1 1/212 per cent of the estimated cost of the buildings. Progress payments were provided for which do not affect this case. It was also provided that should the work, or any part of it, be abandoned the architect would be paid the amount of the progress payments earned up to the time of such abandonment. We will refer to the work done under this contract as the ‘Vauclain Home’ project.

Under the contract of January 20, 1939, defendant employed plaintiff to do similar work in connection with the erection of additions to and alterations of some of the buildings of the San Diego County Hospital also in the city of San Diego. The two contracts were practically identical except that in the second the architect's fee was set at 10 per cent of the cost of construction and alteration. The initial payment was fixed at 2 1/212 per cent of the estimated cost, and progress payments in other percentages. We will refer to the work done under this contract as the ‘County Hospital’ project.

At the times of entering into the contracts it was contemplated that the cost of the construction would be partly financed under federal grants, the federal government contributing 55 per cent of the cost and the county of San Diego 45 per cent. Before beginning the construction of the improvements in question here, the Lanham Act, 55 Stat. 361, Tit. 42, chap. 9, subchap. III, sec. 1531 et seq., U.S.C.A., was passed which authorized the federal government to pay the total cost of such improvements. The financing of the improvements now under consideration was planned under the terms of that act.

Prior to the passage of the Lanham Act plaintiff proceeded to perform his obligations under the first contract. He prepared plans and specifications for three buildings at the Vauclain Home. Two of them were built and he was paid his fees in instalments totaling $19,706.04, the final instalment being paid on December 20, 1939. Nothing furhter was done concerning additional construction on the Vauclain Home project until well into 1941.

Plaintiff prepared four sets of preliminary plans nd studies for the county hospital project. Three of these were never presented to the supervisors but the fourth was presented and approved early in 1939. No contracts were let and on March 27, 1939, plaintiff was paid $600 in settlement of his claim for these services. Between that date and July 14, 1941, plaintiff prepared additional sets of plans for the project, none of which were presented to the supervisors prior to July 14, 1941.

On July 14, 1941, the board of supervisors passed its resolution No. 80 directing that an application be made to the Federal Works Agency, Public Works Administration, for assistance in remodeling old buildings and constructing new units for the county hospital and Vauclain Home, made necessary by activities of the National Defense Program in San Diego. This resolution contained the following: ‘Be it further resolved that the Clerk of this Board be and is hereby authorized and directed to prepare and file said application on behalf of this Board, and that the District Attorney, County Auditor and Controller, E. L. Freeland, Structural Engineer, and Architect F. W. Stevenson, be and they are hereby authorized and directed to furnish the necessary data and information required in said application, and to assist the Clerk in the preparation and filing of the same, the services of the said E. L. Freeland and the said F. W. Stevenson in this matter to be without charge to the County.’

Plaintiff testified that the preliminary plans and estimates had been prepared by him prior to July 14, 1941; that ‘outside of minor changes and a few things that we added, you know, but they were substantially all prepared. The main buildings were all done before that time.’ He also testified that he and Mr. Freeland assembled the required data and information and made the necessary estimates therefor from the plans already prepared, subject to changes made necessary to comply with government requirements.

This data and information were placed on the form of application furnished by the government or attached thereto as exhibits. Copies of the modified preliminary drawings were also attached.

The application, with all of the exhibits, was presented to the board of supervisors and approved by formal resolutions passed on August 11 and 15, 1941. This included approval of the preliminary plans and estimates with a description of the character of the work and materials to be used.

If we understand the evidence correctly, the plans called for four new buildings, remodeling two of the existing buildings and the boiler plant in the county hospital project, and for three new buildings in the Vauclain Home project, all at a total estimated cost of $1,057,643.59, including equipment for both projects.

The federal authorities approved the construction of two new buildings and the remodeling of two buildings in the county hospital project, disapproved the other proposed construction there, and disapproved all the proposed construction in the Vauclain Home project. $620,000 was appropriated for the new construction, and $60,500 for the remodeling in the county hospital project, with added appropriations for equipment.

The new construction was all to be done under federal contract and the county of San Diego had no connection with that part of the improvement. The remodeling was done through contracts let by the county of San Diego which had charge of those improvements.

By a contract with plaintiff dated February 10, 1942, the federal authorities employed him to act as architect on the new construction at a fixed fee of $27,760. Plaintiff testified that the preliminary plans and estimates which he prepared under his second contract with the county of San Diego served, with slight modifications, as the preliminary plans and estimates under his contract with the government.

Sometime between August 15, 1941, and the fall of 1942, differences arose between plaintiff and defendant and defendant terminated its contracts with plaintiff and refused to permit him to act as architect for the work of remodeling the two buildings in the county hospital project. The money allotted for this work was expended under the supervision of another architect. Except for the two new buildings and the remodeling, the other proposed work in the county hospital project, as proposed in the application, and remodeling the boiler plant, was abandoned. The construction of the three proposed buildings in the Vauclain Home project was abandoned, although there is some evidence in the record indicating that one building may have been constructed there entirely different in type and design from any of those shown on the plans prepared by plaintiff.

It is the theory of plaintiff, which was adopted by the trial court in its important particulars, that the various portions of the work contemplated in the two contracts between plaintiff and defendant were divisible so that plaintiff became entitled to payment of the initial payments specified on the approval of preliminary plans and estimates by the board of supervisors; that upon formal approval of such plans and estimates on August 11 and 15, 1941, plaintiff became entitled to payment of the following sums: $15,500, being 2 1/212 per cent of $620,000, the estimated cost of construction of the two new buildings in the county hospital project; $1,512.50, being 2 1/212 per cent of $60,500, the cost of remodeling the two old buildings in the county hospital project; $1,361.25, being the estimated profit he would have made in other proposed new buildings and remodeling the boiler plant in the county hospital project, had defendant not canceled plaintiff's contract of January 20, 1939; $3,165.35 for his approved preliminary plans and estimates of the proposed buildings in the Vauclain Home project. Judgment was rendered in favor of plaintiff in the sum of $21,539.10, being the total of the foregoing amounts.

As its principal defense defendant argues that the portion of the resolution of July 14, 1941, already quoted, which directed plaintiff and E. L. Freeland ‘to furnish the necessary data and information’ for the application for funds to finance the proposed projects, and provided that their ‘services in this matter to be without charge to the County’, was a modification of plaintiff's two contracts with the county so that he was entitled to no compensation for any of the services rendered by him to the county. It is urged that the language of the resolution was clear and unambiguous and therefore was not subject to construction by the trial court.

We may concede the clearness and lack of ambiguity of the resolution without being able to reverse the judgment on the ground urged. The contracts, which the resolution is claimed to have modified, must be considered with the resolution to determine if their combined terms were clear and unambiguous so as to prohibit interpretation by the trial court. Under the contracts plaintiff was employed to render professional services to ‘consist of the necessary conferences; the preparation of preliminary studies, working drawings; specifications, large scale and full size detail drawings; * * *’ for the projects. The contracts also provided that upon the completion of the preliminary studies for the new buildings and the remodelings, and their approval by the supervisors, plaintiff would be entitled to 2 1/212 per cent in one instance and 1 1/212 per cent in the other of the estimated cost of these improvements. When the language of the resolution is considered in connection with the language of the contracts it becomes uncertain. The resolution only specified that the ‘necessary data and information’ for the application for funds be furnished free of charge. This might easily refer to a small part of the work required of plaintiff in the contracts. The trial court concluded that the data and information mentioned in the resolution was not the same as the preliminary work described in the contracts. This is supported by the evidence of plaintiff who testified that the resolution required the assembling of the data for the application from the plans and estimates already prepared. As the language of the resolution, when considered in connection with that of the two contracts, is uncertain, the trial court was empowered to construe it. We cannot say that the construction placed upon such language by the trial court is unreasonable so we cannot hold the findings on that question unsupported by the evidence. See, Evans v. Citizens National Trust & Savings Bank, 29 Cal.App.2d 133, 84 P.2d 218; Kautz v. Zurich, etc., Co., 212 Cal. 576, 300 P. 34; Adams v. Petroleum Midway Co., Ltd., 205 Cal. 221, 270 P. 668.

Defendant argues that the action is for damages for breach of contract; that if plaintiff was entitled to recover at all he could recover nothing more than his prospective profits, instead of the full amount of the earned percentages which he was awarded, except in the one instance already noted.

We cannot agree that the action is for damages for breach of contract. In both contracts plaintiff was employed to perform certain services for defendant. They provided that he was entitled to receive progress payments. Defendan was given the right to abandon the work or any portion of it at any time. On such abandonment it agreed to pay plaintiff the compensation earned up to the time of abandonment. Two and one-half per cent of the estimated cost of construction and remodeling in the county hospital project, and 1 1/212 per cent of the estimated cost of construction in the Vauclain Home project became due and payable to plaintiff on the approval of the preliminary plans and estimates. They were approved by the resolutions of August 11 and 15, 1941. Under the contracts those resolutions fixed plaintiff's right of recovery at that time, although portions of the proposed work were thereafter abandoned and plaintiff was prevented from performing his contract for remodeling the two buildings in the county hospital project. Thus the action is on the contracts and not for damages for their breach.

This is true, with the exception of two of the proposed four new buildings and remodeling the boiler plant in the county hospital project for which the federal government refused to allot money. By common consent of the parties, this phase of the case seems to have been treated as an action for breach of the second contract between plaintiff and defendant. Defendant does not question this portion of the judgment, if it be held that plaintiff is entitled to recover at all.

This disposes of all the issues in the case except the award of $15,500, being 2 1/212 per cent of $620,000 which the government originally allotted as the cost of the two new buildings, construction of which was originally approved. It follows that the balance of the judgment in the sum of $6,039.10 must be affirmed.

Plaintiff testified that he had prepared preliminary plans and specifications for the new buildings prior to July 14, 1941, when the board of supervisors decided to apply for the allotment of federal funds under the Lanham Act; that he and Mr. Freeland prepared the necessary data for the application and placed it on proper forms; that this data, with the preliminary plans and specifications, were either included in or attached to the application for funds and were presented to the board of supervisors on August 11, 1941, and approved by a resolution then passed. Then they were presented to Louis J. Seckels, the district engineer for the Federal Works Agency.

The preliminary plans and specifications for the new buildings called for multiple story fireproof reinforced concrete structures. Mr. Seckels recommended changes, chiefly in the specifications, by the elimination of scarce materials. The only change he recalled when testifying was the elimination of steel in the windows.

Plaintiff testified he made the suggested changes. The amended preliminary plans and specifications were presented to the board of supervisors and were approved by them by resolution on August 15, 1941.

The application with the preliminary plans and specifications finally reached Washington. Plaintiff testified that other changes were suggested by various officials there and were made by him. The application for the erection of two new buildings in the county hospital project was approved and $620,000 was allotted for the work.

Under date of February 10, 1942, plaintiff signed a contract with the federal government, acting through the Federal Works Agency, Public Buildings Administration, employing him as architect on the proposed project. It was designated as ‘Docket California 4–914’. The architect was to be employed and paid, all contracts were to be left, and all work was to be done under direction of the federal authorities. Even the title to the land on which the buildings were to be erected was acquired by the federal government from the county of San Diego so that the land and buildings would belong to the federal government with the county of San Diego entirely out of the picture in so far as the erection and ownership of the new buildings were concerned. Mr. Seckels testified that this portion of the hospital would be operated and perhaps later acquired by the county under some agreement the terms of which would be fair and equitable.

In the contract of February 10, 1942, employing plaintiff as architect on the project we find the following:

‘Article 1. Employment of the Architect.—The Commissioner, acting pursuant to and in accordance with Title 11 of the Act of October 14, 1940 (Public No. 849, 76th Congress) as amended by the Act of June 28, 1941 (Public No. 137, 77th Congress [42 U.S.C.A. § 1541 et seq.]), hereby employs the Architect to perform the necessary professional services hereinafter set forth in connection with the Defense Public Works Project at San Diego, California, and described as follows:

‘Construction of two (2) additions to Hospital operated by the County of San Diego, Docket California 4–914, consisting of one addition to provide 140 beds for communicable diseases and the other, to an administration building, to provide 104 beds for general medical, pediatric and obstetrical cases, excluding equipment.

‘Article 2. Scope of Contract.—The Architect shall perform all of the professional services necessary for the development of the Project to the satisfaction of the Commissioner or his duly authorized representative, including the following:

‘(a) Preliminary Documents.—The preliminary documents shall include a site plan showing the location of each structure and other physical improvements, roads, walks, playground areas, and general grades related to the topography of the site; floor plans and elevations of each structure and other drawings sufficient to illustrate the intent and scope of the improvement; outline specifications in sufficient detail to indicate type of construction, kinds of materials and finishes, and proposed electrical, plumbing, heating and ventilating systems; and a detailed estimate of the construction cost of the project including structures, equipment and furnishing of buildings, site development and improvement (exclusive of landscaping), and all utilities. * * *

‘(b) Working Drawings and Specifications.—After the preliminary drawings have been approved in writing by the Commissioner and the Architect instructed in writing to proceed with working drawings and specifications for the project (unless this procedure is waived as set forth in the next preceding paragraph), the Architect shall prepare working drawings in pencil or ink (at his option) on tracing cloth or tracing paper suitable for producing clear, well-defined blueprints. These drawings shall include not less than the following: * * *

‘No supervision of the work executed from the drawings and specifications is to be required under this contract. * * *

‘Article 4. Revisions.—The Architect shall, without additional compensation, and until final approval thereof, make such revisions in the preliminary documents and in the working drawings and specifications as may be required by the Commissioner; * * *

‘Article 7. Fee and Payments.—(a) In consideration of the Architect's undertaking under this contract, the Architect shall receive the following:

‘A fixed fee of Twenty-nine Thousand Seven Hundred Sixty Dollars ($29,760) which shall constitute complete compensation for the Architect's services under this contract, except as provided in Articles 4 and 5 hereof.’

Articles 4 and 5 are not involved in this controversy nor are other provisions for special additional compensation contained in the contract.

If we understand the testimony of plaintiff correctly, the drawings and specifications prepared by him and submitted with the original application of the County for federal funds, with slight modifications, served as the preliminary drawings, plans and specifications and as a basis for the working drawings, plans and specifications under the federal contract. We have found nothing indicating that he prepared any other preliminary plans and specifications after the execution of his contract with the federal government.

Plaintiff prepared working plans and specifications which were approved. However, the buildings as planned by plaintiff were never constructed owing to acute material shortages, but the federal government paid plaintiff $29,760 in full for the services which he had performed under his contract. Temporary buildings were constructed by the federal government to meet the pressing demand for added hospital facilities with Mr. Freeland acting as architect on the project.

The trial court found as follows: ‘That it is true that pursuant to the laws, rules and regulations governing the grant by the Federal Government it pays all costs involved in the construction of the buildings, as alleged in said paragraph, except that under said contracts the fees and costs for the preparation of preliminary plans and studies are not paid by the Federal Government; that the contract executed by plaintiff on February 10, 1942, and referred to in said paragraph IV (of the answer), did not include any compensation for the preparation of preliminary plans and studies, or for the services sued for in this action, and the payment of twenty-nine thousand seven hundred sixty dollars ($29,760.00) received by plaintiff as alleged in said paragraph IV did not include any compensation for the services performed by plaintiff and sued for herein; * * *’

The following appears in the conclusions of law:

‘That said contracts of January 20, 1939, and February 15, 1937, were neither modified nor abandoned at the time services were performed by plaintiff thereunder and at the times mentioned in plaintiff's complaint, but that said contracts, and each of them, were at said times in full force and effect. * * *

‘That the contract made by plaintiff with the Federal Works Agency and the payments received by plaintiff thereunder covered work other and different than that sued for in this action, and said contract and the performance thereof did not in any manner affect the liability of the defendant county for the items sued for herein.’

Plaintiff seeks to support the foregoing on several grounds. He first argues that neither the questions of payment, novation nor abandonment were made an issue in the pleadings, presented at the trial, nor urged in the briefs on appeal; that the issue must be considered one of novation and not abandonment of a contractual right; that both novation and abandonment are affirmative defenses that must be pleaded and proved by the defendant; that the sufficiency of the evidence is not an issue on appeal; that the finding that there was no novation, abandonment nor payment is supported by the evidence.

We rather agree with plaintiff that the question of novation is not now before us and that there was no novation established by the execution of the federal contract of February 10, 1942. However, we cannot take the same view of the defense of abandonment of the right of plaintiff to seek compensation from the county for preparing the preliminary plans and specifications under his county contracts and of his payment in full for all services by the federal government.

An abandonment of a known right occurs when there is an intention to abandon it coupled with acts or omissions by which such intent is carried into effect. As said in City of Los Angeles v. Abbott, 129 Cal.App. 144, 18 P.2d 785, 787:

‘Abandonment includes the intention to abandon, and the external act by which such intention is carried into effect. Hough v. Brown, 104 Mich. 109, 62 N.W. 143; Barnett v. Dickinson, 93 Md. 258, 48 A. 838; Cassell v. Crothers, 193 Pa. 359, 44 A. 446. Intention is the essence of abandonment. Tennessee & C. R. Co. v. Taylor, 102 Ala. 224, 14 So. 379; Bartley v. Phillips, 165 Pa. 325, 30 A. 842. The characteristic element of abandonment is the voluntary relinquishment, and it is in that respect distinguished from other modes by which ownership may be divested. Commonwealth v. Koontz, 258 Pa. 64, 101 A. 863; Dikes v. Miller, 24 Tex. 417; Middle Creek Ditch Co. v. Henry, 15 Mont. 558, 39 P. 1054. ‘Abandonment’ is the intentional relinquishment of a known right. Sharkey v. Candiani, 48 Or. 112, 85 P. 219, 7 L.R.A.,N.S., 791; Moore v. United Elkhorn Mines, 64 Or. 342, 127 P. 964, 130 P. 640.'

‘It is settled that an abandonment of a contract by consent may be implied from the acts of the parties. Newell v. E. B. & A. L. Stone Co., 181 Cal. 385, 184 P. 659, 9 A.L.R. 993; Treadwell v. Nickel, 194 Cal. 243, 228 P. 25; Tompkins v. Davidow, 27 Cal.App. 327, 149 P. 788; Tatterson v. Kehrlein, 88 Cal.App. 34, 47, 263 P. 285; Jones v. Noble, 3 Cal.App.2d 316, 322, 39 P.2d 486. * * * The question of whether or not an agreement has been abandoned is a mixed question of law and fact (Ross v. Tabor, 53 Cal.App. 605, 200 P. 971; * * *.’ Thompson v. Municipal Bond Company, 23 Cal.App.2d 402, 73 P.2d 274, 278. See, also, Barton v. Pierce, 131 Cal.App. 33, 20 P.2d 736; Pidgeon v. Lamb, 133 Cal.App. 342, 24 P.2d 206; Peal v. Gulf Red Cedar Co., 15 Cal.App.2d 196, 59 P.2d 183; Lohn v. Fletcher Oil Co., Inc., 38 Cal.App.2d 26, 100 P.2d 505; Dessert Seed Co. v. Garbus, 66 Cal.App.2d 838, 153 P.2d 184.

It is true that the foregoing cases thoroughly establish the principle that abandonment involves a question of fact, and that a finding of the trial court on it may not be disturbed on appeal when there is any substantial evidence in the record supporting it. We will consider the sufficiency of the evidence to support the quoted findings later in this opinion.

We believe that the questions of abandonment and payment were made an issue in the pleadings. Paragraph 4 of the answer set forth in detail, and chronologically, the various facts involved in the transactions between plaintiff and defendant and between plaintiff and the federal government. It contained the following allegations:

‘That said offer of grant of $896,000 for both projects was duly accepted by said Board of Supervisors on behalf of defendant County on January 28, 1942.

‘That thereafter, on February 10, 1942, plaintiff executed a contract for architectural services on the Federal Project, Docket: Calif. 4–914, with the United States of America, Federal Works Administrator, By Commissioner of Public Building, which contract provides for the payment to plaintiff of a total fee of $29,760 for such services, being 4.8% of an estimated construction cost for the project of $620,000. A copy of said contract, marked Exhibit 4, is attached hereto, and is by this reference made a part hereof.

‘That defendant is informed and believes, and therefore alleges, that the United States of America paid plaintiff his total fee of $29,760 in full for services performed under said contract, prior to the commencement of this action.’

The ‘Exhibit 4’ attached to the answer is a copy of the contract by which the federal government employed plaintiff as architect on the federal project, and contained the provisions already quoted, as well as others bearing on the questions of abandonment and payment. By reference this contract was made a part of the answer. Thus, by alleging the facts in detail and by the allegations we have quoted, the questions of abandonment and payment were sufficiently raised by the pleadings.

Plaintiff admitted the execution of the contract between himself and the federal government and the receipt by him of $29,760. This contract was before the trial court, and as it was an important part of the evidence we must conclude that it was considered in the decision of the case. There are findings and conclusions of law on the questions of abandonment and payment. Thus, it cannot be said that these questions were not issues before the trial court even though they may not have been specifically argued by counsel during the trial.

It is true that the questions of abandonment and payment were not argued in the original briefs in the form in which we are considering them. However, the rehearing was granted to permit counsel to brief these questions and to argue them orally should they desire. The questions have been fully presented in the briefs now filed.

As a general rule, appellate courts are not required to hunt out errors in the record that are not argued in the briefs. This rule is for the convenience of the courts, and where the appeal is taken by means of the alternative method appellate courts may consider any serious errors that affect the judgment and appear on the face of the record. 2 Cal.Jur. 729; Richardson v. Davis, 116 Cal.App. 388, 2 P.2d 860. The consideration of abandonment and payment seems so necessary to a proper decision of the case that we cannot overlook them, especially since counsel have been given ample opportunity to brief the questions.

The remaining arguments of plaintiff may be considered together under the topic of the sufficiency of the evidence to support the findings. Counsel point to the testimony of plaintiff and Louis J. Seckels and urge that it supports the findings against abandonment and payment, thus creating a conflict in the evidence which was resolved in favor of plaintiff by the trial judge which is final and conclusive on appeal.

Plaintiff testified in effect that he had no intention of abandoning his claim against the County and no thought that such claim would be liquidated by the payment from the federal government.

Plaintiff's contract with the federal government required him to furnish preliminary drawings, plans and estimates for the proposed work. He testified that those prepared for the County, with slight modifications, served under this contract. The federal contract also specified that the payment of $29,760 would be in full for services rendered under the contract, including preliminary drawings, plans and estimates which in fact were those prepared for the county with modifications. The conclusion seems inescapable that the payment by the federal government covered payment for the work plaintiff had done for the county, and that the portion of the judgment for $15,500 gives him double compensation for the same services.

Further, the future performance of the full terms of plaintiff's contract with the county has been rendered impossible, at least for some time. Title to the ground upon which the buildings designed by plaintiff were to have been erected has passed out of the County of San Diego and is vested in the United States. Hospital buildings have been erected on that ground. While these facts in themselves are not sufficient to establish abandonment, when they are considered with the further fact of payment they furnish a strong argument supporting the conclusion that plaintiff abandoned his claim against the County when he signed his contract with the federal government and accepted his fee from it.

It is presumed ‘that a person intends the ordinary consequences of his voluntary act.’ Subd. 3, sec. 1963, Code Civ.Proc. If plaintiff did not intend to abandon his claim against the County when he signed his contract with, and accepted his fee from the federal government, it shows a lack of attention to the precise terms of that instrument or a lack of understanding of its clear and unambiguous language.

Mr. Seckels testified that it was not the practice of the federal government to pay for preliminary drawings. While his evidence is not at all clear on this subject, a study of it indicates that in making this statement he probably was referring to the sketches that must accompany the application for funds, and not to the preliminary drawings, plans and specifications that the federal contract required plaintiff to furnish. The witness referred to sketches made on ordinary wrapping paper and others prepared by persons not architects so that the federal government could not offer a contract to any such person to act as architect. This conclusion is also supported by the following from the testimony of Mr. Seckels:

‘Q. You have given some testimony as to the practice sometimes employed about fees for preliminary sketches. As I understand you, the government, of course, or your department, doesn't undertake to pay at all for that type of work? A. No, sir.

‘Q. That is all supposed to be done before you take over? A. That is right.

‘Q. So that as far as your department is concerned, it is of no materiality to you whether the party who presents that application does or does not pay their architect? A. That is right.’ (Emphasis ours.)

If we are wrong in this opinion, and Mr. Seckels intended to testify that it was not the practice of the federal government to pay for any preliminary plans and specifications, then it is clear from the terms of the contract before us that such practice was not followed in this case.

The record in this case seems too clear to leave room for any reasonable doubt as to the effect of the execution of the contract between plaintiff and the federal government together with the acceptance of the fee from the government by plaintiff. Under the testimony of plaintiff that the preliminary plans and specifications he prepared for the county served, with slight modifications, under the federal contract, and under the clear terms of that contract requiring him to furnish such preliminary documents as part consideration for his fee of $29,760, which was admittedly paid him in full for all services rendered by him under his federal contract, we must hold that this claim against the county was abandoned and that he has received payment in full for the services in question rendered defendant.

It follows that the findings of fact and conclusions of law already quoted lack evidentiary support.

If we cannot affirm the judgment in its entirety, plaintiff asks us not to reduce the judgment by $15,500, but to reverse that portion of it so that the issue may be retried. We can see no good purpose to be served by such reversal. Our conclusions are based principally on the evidence of plaintiff himself and on the clear terms of written instruments. Certainly plaintiff cannot complain if we accept his own testimony at its face value and follow the clear language of a contract which he voluntarily executed and under which he was paid. His testimony and this contract show that the payment of the fee by the government covered payment for this work done for the county, so nothing could be gained by another trial.

The judgment for $21,539.10 is reduced by $15,500 to $6,039.10, and as so reduced is affirmed.

MARKS, Justice.

BARNARD, P. J., and GRIFFIN, J., concur.