(dissenting):
I think this judgment should be affirmed. The plaintiff undertook to prepare these plans and specifications and, was to receive as compensation one-half of the difference between the lowest figure for which a responsible builder 'would undertake to do the "work and the amount for which the plaintiff could do it. The two letters which are assumed to state the contract are not exactly alike, but as the plaintiff proceeded under his letter to the defendant, dated July 19, 1907, that letter maybe taken as constituting the agreement. The plaintiff drew plans and specifications and obtained a bid to do the whole work from Hopper & Son for the sum of $26,480. The plaintiff then *98interviewed sub-contractors and obtained .estimates from- them for doing portions of the work; but I cannot find that on the, basis of those sub-contracts the plaintiff would have been able to do the work at a less ..price than that represented, by the Hopper bid. ' Subsequently the work was.' abandoned and was never completed. Upon these.facts I do not think■ that any judgment in favor of the plaintiff for more than nominal damages could be sustained. The. plaintiff was not. entitled to recover upon, a quantum, meruit', because there was no employment under which the plaintiff was to' be paid the value of . his services. He agreed to do the work and to. receive for his compensation onerhalf the difference between what he could do the work for without a contract and the amount that the lowest bidder would' do the work for with ,a contract; and to entitle him to recover he was bound to prove that if he had doné- the work he could have completed it for a less sum than that, bid by the ^lowest bidder. He failed to furnish that proof. I do not. think, therefore,, that he was - entitled to recover a substantial judgment.
The judgment should be affirmed.
Laughlin, J., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.- ' ■