delivered the opinion of the court.
This is an assumpsit brought by appellee against appellant to recover a balance due for services as an architect. The declaration consists of the common counts. The bill of particulars attached thereto reads:
“ Chicago, April 16th, 1900. Mr. Frederick Espert, 98 South Water street.
To Frederick Ahlschlager, Architect, Dr.
For drawing plans and specifications and superintend*485ence for a seven story and basement cold storage and refrigeratory building, 75x109 feet, erected on Michigan street, near Bush street. Total cost $59,800 at 3^.
Upon the trial the jury returned a verdict in favor of appellee and assessed his damages at the sum of $1,219.20. From the judgment entered upon this verdict the present appeal was perfected.
There is no dispute but that appellee was employed by appellant as architect of such a building as is described in the bill of particulars, and performed the work therein set forth; it is, however, denied that he is entitled to be paid the sums therein claimed for such services. Appellant contends that there was an express contract between the parties limiting' the charges for appellee’s services to two per cent of the total cost of the building, and the preponderance of the evidence seems to support that proposition. Indeed an analysis of the verdict shows that it is based upon two per cent of such cost, plus the four items for extra services, as stated in the bill of particulars, and the sum of $203.20, being interest for delay in payment.
Under the authorities in this state, the item of interest is clearly wrong. Section 2, chapter 74, Bevised Statutes, provides that creditors shall be allowed to receive interest at the rate of five per cent per annum “on money withheld by an unreasonable and vexatious delay of payment.” Appellee made out his bill as shown in the bill of particulars, and 'presented it to appellant for payment. The two men disagreed as to the amount due, and, without attempt*486ing an adjustment, parted in anger. This suit was begun without further negotiation. It is clear that where there is an honest dispute between business men as to the amount due from one to the other, something more than mere delay is necessary to authorize a recovery of-interest under the statute. That section imposes a penalty, not for delay alone, but for a vexatious and unreasonable delay. Surely a delay is not of this character when the claim demanded is $897 greater than the preponderance of the evidence shows and a jury found it should be. The mere fact of appearing and defending a suit is not sufficient to fasten this liability upon appellant, because that is a right which cannot be construed into unreasonable or vexatious delay of payment. Imperial Hotel Co. v. Claflin Co., 175 Ill. 124; Hoblit v. Bloomington, 71 Ill. App. 204; Glos v. Clark, 97 Ill. App. 620.
The item of $60 for making extra drawings for different styles of insulation, and to consultations in regard thereto, is unwarranted. The evidence shows that the building in question was a cold storage house; that appellee had built two other such buildings only; that in talking over the plans with appellant it was suggested that a somewhat different plan of insulation be installed; that neither appellant nor appellee was an expert in insulation; that it was then and there agreed that an expert, Mr. John Westerlin, should be consulted; that accordingly appellant and appellee had an interview with the expert, and that the conclusions then reached as to the preferable form of insulation were incorporated by appellee in the original plans of the building. Clearly these services are included in his duties as architect of the building, and do not constitute proper ground for an extra charge.
During the construction of the building appellee employed his brother, John Ahlsohlager, as superintendent of the work. He charges these services as an extra, and the verdict shows that the jury agreed with him in this regard. Upon this question appellee testified: “ I was to draw the plans and specifications and superintend the work.” * * * In *487answer to this interrogatory—“Did you not agree with Mr. Espert before he gave you the order to make the plans and specifications, that you would furnish a superintendent over this building—in other words, superintend the erecting of it? yes or no?” he answered: “Yes, sir.” Question: “ Did you tell him it would cost him extra ? ” Answer : “ No.” Again he says : “ My duty as an architect is to do the whole work as to the making up of plans and specifications, details, and take estimates, let contracts and 'give general superintendence to the work.”
John Ahlschlager, who for years had been an assistant to appellee, testifies that his work consisted in “supervising the details of the building and seeing that it is carried out according to plans and specifications.” He further says that while he was so employed Michael Espert asked him “ to stay steady on the building,” and admits appellant never talked to him about staying there all the time, and that he took his instructions from appellee.
It appears that prior to the construction of the building in question, appellee had, as architect, drawn the plans for and superintended the erection of two other cold storage buildings, similar in form and arrangement to this one; that his brother John superintended each of these two buildings for appellee, performing therein substantially the same services as were rendered here; that appellant passed upon the correctness of the bills for these two buildings and then paid them; that in neither case was there any extra charges for the services performed by J"ohn Ahlschlager; and that the commissions of appellee there as here was two per cent on the cost of the building. It was attempted to be shown that it is the custom, where constant superintendence is necessary, to employ what is called a “clerk of the works,” whose service is paid for by the owner; but such custom, if it exists, cannot control as against the terms of an express contract, as is here proved by a great preponderance of the evidence, and is here found by the jury. "W e are of the opinion that the work done by this assistant is included in the superintendence which ap*488pellee assumed and agreed to perform, and that the reward therefor is to be found in appellee’s agreed commission based upon the cost of the building.
Counsel contend that where the evidence is conflicting this court will not disturb the verdict. Whatever may be the rule where there is a conflict merely in the evidence, it is the law that this court should “ disturb the verdict,” and it is the duty of this court so to do, where it is clearly against the weight of the evidence. See I. C. Ry. Co. v. Haecker, 110 Ill. App. 104, where the authorities upon this point are collected. Under the evidence, ho one of the foregoing items should have been considered by the jury.
There is evidence in the record, which, if believed by the jury, warranted them in finding for appellee as to the item of $35 for making out the lumber bill, and that for $75 for changes in plans and alterations. If appellee, within ten days from the date when this opinion is handed down, will remit from the verdict herein the sum of $513.20, the judgment of the Circuit Court will be and is affirmed for the sum of $706; and if appellee fail so to remit, then the judgment of the Circuit Court shall be and is reversed and the cause remanded.
Bemittitur filed and judgment affirmed January 9, 1905.
Affirmed.