On appeal from the Superior Court, Law Division, Hudson County.
For reversal -- Chief Justice Vanderbilt, and Justices Case, Oliphant, Burling and Ackerson. For affirmance -- Justices Heher and Wachenfeld. The opinion of the court was delivered by Case, J.
The appeal, certified to us on our own motion, is from a judgment in favor of the plaintiffs and against the defendant for services rendered by John T. Rowland, a duly licensed and registered architect, in his lifetime, in drawing uncompleted plans and specifications for a county hospital which was never erected. The complaint contained two counts, of which one was for the reasonable value of services rendered; and the case went to the jury on that proposition.
The legality of the appointment and the right of the decedent or of his estate to compensation for the services rendered are not disputed. The employment was under a resolution of the board of chosen freeholders adopted April 11, 1938, which provided as follows:
"RESOLVED, that John T. Rowland, be and he is hereby appointed Architect-in-Charge for all building work including all furniture and equipment work at the Hudson County Hospital for Mental Diseases, Secaucus, N.J., effective immediately and that compensation be and hereby is fixed at six per centum (6%) of the cost of such work, and be it
FURTHER RESOLVED, that said John T. Rowland be and he is hereby notified to proceed with drawings and specifications for all building work including all furniture and equipment work at said hospital and report the same to this Board for its approval and advertising for bids, and be it FURTHER RESOLVED, that George O'Hanlon, M.D., be and he is hereby appointed Medical Consultant in connection with the preparation of the drawings and specifications for all building work including all furniture and equipment work at said hospital."
Interim payments were made to Mr. Rowland in the aggregate and substantial sum of $165,000. The bills upon which those payments were made were rendered "on account of services," with dates and amounts as follows: April 6,
1943, $42,500; October 21, 1943, $42,500; March 6, 1944, $20,000; June 5, 1944, $20,000; September 12, 1944, $20,000; and December 20, 1944, $20,000. The bills were accompanied by explanatory letters to the board and by certain of the plans and blue prints. So late as December 26, 1944 -- this in conjunction with the bill of December, 1944 -- Rowland wrote to the board stating that the final drawings for one of the buildings were advancing toward completion and forwarding some blue prints. Payment of the last of these interim billings was made two days after Rowland's death. Dr. O'Hanlon, appointed by the board in 1938 as medical consultant in the preparation of the drawings and specifications, was also Medical Director of the Jersey City Medical Center and hospitals and institutions of Hudson County. He consulted, either directly or through his assistant, with Mr. Rowland or the latter's representative, and testified that he had never received notice to discontinue; but what he did and what Rowland did, independently or together, were subject to approval by the board. The work of drawing the plans and specifications was begun forthwith upon Rowland's appointment in April, 1938, and continued with decreasing tempo until his death on January 22, 1945. On April 26, 1945, the board adopted a resolution as follows:
"WHEREAS, John T. Rowland, Architect-in-Charge, for preparation of certain plans for county buildings, died on January 22nd, 1945; therefore be it
RESOLVED, that the Executors of the Estate of John T. Rowland, Architect, be and they are hereby directed to suspend activities upon any work upon which the said John T. Rowland was engaged for the County of Hudson, and to transmit to this Board all plans, specifications, property and other data in their present stage of completion."
The action was brought to recover the additional sum of $92,253, representing the balance claimed by the estate to be due Mr. Rowland for the services he had rendered, and resulted in a judgment for $75,000 with interest.
The position taken by the defendant at the trial was, and is here, that Mr. Rowland was entitled ...