Eby

The plaintiff has appealed, feeling aggrieved by the judgment for $1,034.65, when he had prayed for one awarding him $3,184.60. His action was based upon a written contract in which he undertook to remodel defendants’ store and they agreed to pay him therefor “Cost plus 10%.’’ He alleged that the cost plus 10 per cent was $15,216.68 of which $12,032.08 only had been paid. The trial court held that plaintiff had improperly included in his costs three items: (a) the premiums paid for workmen’s compensation and public liability insurance; (b) charges for his overhead and (e) too great a sum in satisfaction of his obligation to his electrical subcontractor. These three items, together with 10 per cent on one of them, totalled $2,149.95, the amount by which plaintiff’s judgment disappointed him. We are reversing the judgment because we are satisfied that the amount plaintiff paid for workmen’s compensation and public liability insurance should not have been deducted in figuring the basis for his compensation, and a reversal, rather than modification, better serves the interests of justice.

The parties used a printed form for their agreement, subdivision numbered 3 reading: “In…