1. Where the allegations in a count of a petition are wholly inconsistent with the provisions of a contract upon which suit is brought for a breach, a copy of which is attached as an exhibit, there can be no recovery under it and a general demurrer to that count is properly sustained.

2. Where a contract for architectural services has been breached by the owner, the architect, if he has performed any of the services contemplated, may maintain an action for the loss sustained by the breach, or he may sue on a quantum meruit to recover the value of the services performed.

DECIDED SEPTEMBER 29, 1964.

John W. Houser, Jr., contracted with M. G. Turner, a registered architect, for the preparation of plans and specifications to be used in the construction of a nursing home and for the supervision of the work after awarding a contract, using a standard A.I.A. form of contract. The preliminary plans, approved by the owner, called for the construction of a 64 room building at an estimated cost of $267,000, the construction to be financed through FHA. Plaintiff (the architect) alleged in his petition that after several conferences with FHA officials "the estimated cost of the proposed nursing home was reduced, with the approval of the defendant, to a lower figure by the elimination of certain features of the plans and specifications." FHA then approved the project upon condition that the owner provide a financial statement showing adequate funds to be available for its completion. This the owner declined to do, but with further revisions in the plans he arranged with a local institution for financing and awarded a contract for construction for $108,080. Plaintiff alleges that the owner, after concluding his negotiations with FHA, refused further to perform the contract for architectural services though plaintiff at all times stood ready, able and willing to perform his every obligation thereunder.

In count 1 of the petition plaintiff sought to recover the sum of $9,674.20 "covering the actual costs of all the architectural and engineering work which had been performed by plaintiff, and by engineering firms under subcontract with plaintiff . . . which represented the actual out of pocket costs on this work up to the time that defendant failed and refused to further perform under said contract."

In count 2 plaintiff alleged the contract for architectural services, its performance through the negotiations with FHA and its breach by the defendant, and sought to recover $9,674.20 as the reasonable value of the services rendered up to the time of the breach.

A general demurrer to each of the counts was sustained, and plaintiff excepts.

EBERHARDT, Judge.

1. The contract between plaintiff and defendant, copy of which was attached to the petition, provided that "The owner agrees to pay the architect a total fee of seven (7) percent of [the] contract price." The architect is obligated under the contract to furnish without additional cost to the owner all engineering and consulting services, the site planning, the living and transportation expenses of himself and his assistants and to hold all necessary conferences, make all preliminary studies, and prepare all working drawings, specifications, keep construction accounts, supervise the work and make all certificates for payment, etc., after which it was provided that "In the event of termination, the architect shall be entitled to only the prescribed portion of fee determined by the percentage to which construction is completed."

Thus, the first count, seeking a recovery of "actual out of pocket costs on this work up to the time that defendant failed and refused to perform under said contract" is wholly inconsistent with the contract provisions and was subject to the general demurrer. Allison v. Allman, 82 Ga. App. 574 ( 61 S.E.2d 672). Plaintiff did not, in that count, seek damages for the breach as might have been done. See Southern Land c. Corp. v. Davis Floyd Engineers, Inc., 109 Ga. App. 191 ( 135 S.E.2d 454). Damages flowing from the breach do not consist of the out of pocket costs; rather it is the difference in the total amount to be paid under the contract and the cost of performance by the plaintiff. Darlington Corp. v. Evans, 88 Ga. App. 84, 89 ( 76 S.E.2d 72). Count 1 alleged no recoverable damages, and was subject to the general demurrer. Ryals v. Livingston, 45 Ga. App. 43 ( 163 S.E. 286).

2. It is otherwise, however, as to the second count in which plaintiff alleged performance on his own part up to the point where defendant breached by refusing further performance and sought to recover what he alleged to be the reasonable value of the services which had been rendered. He did not, in that count, declare upon the contract but upon a quantum meruit. Shubert v. Speir, 201 Ga. 20 ( 38 S.E.2d 835). It was error to sustain a general demurrer as to it.

Judgment affirmed in part; reversed in part. Bell, P. J., and Jordan, J., concur.