■ P IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 1.25 m 1 2.5 ^ U£ 12.0 1.4 12.2 1.6 V] ^Pl *W^ ^ V /A ^4.^ .^.1^ a ^^ ^ ■ P CIHM/ICMH Microfiche Series. CIHIVI/ICIVIH Collection de microfiches. Canadian Institute for Historical Microreproductions Institut Canadian de microreproductions historiques 1980 Technical Notes / Notes techniques The Institute has attempted to obtain the best original copy available for filming. Physical features of this copy which may alter any of the images in the reproduction are checked below. D D D D Coloured covers/ Couvertures de couleur Coloured maps/ Cartes g6ographiques en couleur Pages discoloured, stained or foxed/ Pages d^colordes, tachet^es ou piqu^es Tight binding (may cause shadows or distortion along interior margin)/ Reliure serr6 (peut causer de I'ombre ou de la distortion le long de la marge intdrieure) L'Institut a microfilm* le meilleur exemplaire qu'il lui a 6t6 possible de se procurer. Certains ddfauts susceptibles de nuire A la quality de la reproduction sont not6s ci-dessous. n D Coloured pages/ Pages de couleur Coloured plates/ Planches en couleur Show through/ Transparence Pages damaged/ Pages endommagdes The posi of tl film The con^ orti appi The film insti Mar in o upp boti folic D Additional comments/ Commentaires suppi6mentaires Bibliographic Notes / Notes bibliographiques n Only edition available/ Seule Edition disponible Bound with other material/ Reli6 avec d'autres documents Cover title missing/ Le titre de couverture manque D D D Pagination incorrect/ Erreurs de pagination Pages missing/ Des pages manquent Maps missing/ Des cartes gdographiques manquent D Plates missing/ Des planches manquent D Additional comments/ Commentaires suppl6mentaires The images appearing here are the best quality possible considering the condition and legibility of the original copy and in keeping with the filming contract specifications. Les images suivantes ont AtA reproduites avec le plus grand soin, compte tenu de la condition et de la netteti de i'exemplaire film6, et en conformity avec les conditions du contrat de filmage. The last recorded frame on each microfiche shall contain the symbol —^-(meaning CONTINUED"), or the symbol V (meaning "END"), whichever applies. Un des symboles suivants apparaftra sur la der- nidre image de cheque microfiche, selon le cas: ie symbols — ► signlfie "A SUIVRE". le symbols V signlfie "FIN". The original copy was borrowed from, and filmed with, the kind consent of the following institution: National Library of Canada L'exemplaire fiimi fut reproduit grAce d la g6n4rosit6 de I'dtabiissement prAteur suivant : BibliothAque nationale du Canada Maps or plates too large to be entirely included in one exposure are filmed beginning in the upper left hand corner, left to right and top to bottom, as many frames as required. The following diagrams illustrate the method: Les cartes ou les planches trop grandes pour dtre reproduites en un seui clich6 sont fiimdes d partir de Tangle sup6rieure gauche, de gauche A droite et de haut en bas, en prenant le nombre d'images n6cessaire. Le diagramme suivant iilustre la m6thode : 1 2 3 t . ■ - » ■ 5 6 .]' Euti ninety-c ^ ^i' Architects and the Law. A COLLECTION OF CASES TRIED IN THE ENGF ISH CANADIAN, FRENCH AND AMERICAN COURTS OF ' LAW, RELATING TO THE EVERY-DAY PRAC^i'ICE OF THE PROFESSION OF ARCHITECTURE. 'Til, BY R. W. GAMBIE R-BOUSFIELD, ASSOC. ROYAL INST. OF BRITISH ARCHITECTS. MEMBER OF THE ONTARIO ASSOCIATION OF ARCHITECTS. Price, 50 Cents. Per Post, 56 Cents Pre-Paid. /V///35 0-35 243838 \ 1 \ \ PREFACE. In issuing this collection of Actions-at-Law relating to the profession of architecture my intention has been to put within reach of all architects in Canada instances in which the ordinary difficulties between architects and their clients and contractors have been ventilated and decided on in the Courts, with a view to enable architects before taking action against their clients, or allowing their clients to go to Law with them, to ascertain how cases similar to their own have been decided, and how the Law is likely to regard their claims. In Canada it is English Law from which precedents are generally taken, but I have included a number of cases tried in the American Courts which have usually terminated with decisions corresponding to English judgments, and they will be found to be useful especially where similar cases have not come before the English Courts. The cases reported here cover the last twenty years, and although I do not profess for this little work that i; gives examples of every kind of dispute that can possibly arise between architects and their clients, yet I believe that architects in Canada will find it of considerable value and interest, and will therefore be willing to overlook its deficiencies. R. W. GAMBIER-BOUSFIELD. Toronto, 1891. INDEX. PAGE. I.— ARCHITECTS' SUITS FOR RIGHTFUL COMMISSION. Client demands larger building than can be built for the money, and blames architect. McLachlan v. Grant 1 1 VVylie v. Willmer 19 Client's defence, dampness of walls. ' Adams v. Armstrong 11 Client claims drainage out of order. Would not employ clerk of works. Stevenson v. Stephenson 12 Charnley v. Kinsle:y 16 Client claims builder's price too high. Difference in measure- ments of materials. CORBETT and SONS V. RICHMOND AND CHANDLER 12 Client claims fraud on architect's part. Bell v. Moss 13 Rights of adjoining owners not reported by architect. Taylor and Locke v. Greene and Sons 13 Architect agrees to certain work for certain fees and is required to do more work without further charge. Norman V. Lez ANT School Board 13 Charnley v. Kingsley 16 Client claims negligence on architect's part. TOMLINSON V. BaRNET 1 4 Client claims charges of architect excessive. Chorley v. Crossley 14 c. w. romeyn v. 16 Time and travelling expenses. Howard v. Kitching 14 Taylor v. Davis 15 Case in Brussels 17 Judge refuses to allow "custom" as evidence as to professional charges. Whitmore v. Crabb 15 Paraire v. Loibl 15 VVhitaker v. Floating Bath Co 15 BousFiELD v. Payne 16 — 6— . PAGE. Client claims work delayed by architect. Case in Brussels 17 Client remedies defective work without notifying architect. Case in Brussels 17 II.— ABANDONED WORK. Architect's account taxed, but taxing ov^r-ruled. Snell v. Carnell 17 Client claims tenders too high. Hesketh v. Rollwagen 18 Wylie v. Wilmer 19 Frend v. Prior 20 White v. Marshali 22 FiCKENs V. New York Athletic Cluh 22 Client claims plans were impracticable. Champion v. O' Donovan 20 MoFFATT V. Dickson 21 Preliminary drawings, definition of 20 Client claims plans and sketches were competitive or made with- out authority. Keeling v. Begbie 18 Townsend v. Smith 19 Champion v. O'Donovan 20 NowRV v. 21 A Baltimore Case 21 Romevn v. Sickles 22 Architect incapable of satisfying commissioners who must ap- prove plans before proprietor could have them carried out. Moffatt v. Dickson 21 Proprietors induce architects to prepare sketches. NovvRV v. 21 Baltimore Case 21 Client refuses to pay simply because he abandons work. Schneider v. Waggaman 21 White v. Marshall 22 III.— COST OF BUILDINGS ABOVE CONTRACT. Edbrook v. Wright 23 French Cases 23 Morris v. Cutter 24 Kimberley v. Dick 3 7 Brown v. Bridlington Cemetery Board 36 PAGE. Proprietors sue architects for damages for cost of buildings above contract. French Cases 23 Morris v. Cutter 24 IV.-OWNERS LIABLE FOR ORDERS GIVEN BY ARCHITECTS ACTING AS THEIR AGENTS. Santer V. Hasler & Co 24 Byrne and Wilmot v. Stafford 27 Brown v. Bridlington Cemetery Board 36 V— ORDERS GIVEN BY OTHERS THAN THE PROPRIETOR. Morris v. Cutter 24 VL— ORDERS GIVEN BY CORPORATIONS POSSESSING SEALS. Hunt v. Wimbleton Local Board 25 Young v. Corporation of Leamington 25 Clark v. Guardians of Cuckfield Union 25 Mellis v. Shirley Local Board 25 Scott v. Great and Little Clifton School Board .... 25 Norman v. Lezant School Board 13 Power v. Bowman ville School Board 26 Comments of Meadows White, Q.C 26 VII.— DISMISSAL OF ARCHITECT. Birch v. Earl of Shrewsbury 26 Byrne and Wilmott v. Stafford 27 McLachlan v. Grant 11 FicKENs V. New York Athletic Club 22 VIII.— RESPONSIBILITY FOR DEFECTIVE WORK, Mosdell v. Mitchell, et al 28 Stevenson v. Stephenson 12 Adam v. Armstrong 11 MONEYPENNY V. HaRTLAND 30 Whitby v. Dillon 30 Hubert v. Aitken 29 French case. Work perfect at completion 29 French Case. Owners insist on unstable construction. 29 Architect chooses material which causf:s failure .... 30 Notes 30 IX.— EXTRAS AND DEDUCTIONS. Byrne and Wilmott v. Stafford 27 Edbrook v. Wright 23 French Cases 23 Morris v. Cutter 24 CORBETT AND SONS V. RICHMOND AND ChANDLKR 12 Richards v. May 33 Lapthorne v. St. Aubyn 32 Brunsden v. Staines Local Board 34 Brown v. Bridlington Cemetery Boakd 36 —8— PAGE. !i I X— INACCURATE DRAWINGS MONEYPKNNY V. HaRTLAND 3© Whithy V. Dillon 30 XI.— OWNERSHIP OK DRAWINGS. British Government v. Heirs of Sir Chas. Barry 3,1 Clarke v. Macnamara 31 London Schooi, Board v. Northcroft and Son, et al.... 31 Lamu and Armstrong V. Harbottle 32 Notes 31 XII.— CERTIFICATE CASES. Contracts make architects sole arb. ators. Lapthorne v. St. Aubyn 32 , Richards v. May 33 Morgan v. Birnie 33 (lOODYKAR V. Mayor of Weymouth 33 Laidlav/ v. Hastings Pier Co t^:^ Brunsden v. Staines Local Board 34 Davis v. Taylor 37 • Jones v. St. John's College, Oxford 37 Kimheri,p:y v. Dick 37 Report of Committee of Western Association of Architects, Extracts from 37 Builders sue for extra works after final certificate has been paid. Brunsden v. Staines Local Board 34 Stevenson v. Watson • 34 Kimberley v. Dick 37 Refusal of proprietors to refer to arbitration. Brunsden v. Staines Local Board 34 Builder alleges negligence of architect in examining accounts. Stevenson v. Watson 34 Refusal of proprietors to pay certificates of architects. Lewis v. Hoare 35 Brunsden v. Beresford • 35 Botterill v. Ware Board of Guardians 35 Charges of collusion between proprietor and architect. Brunsden v. Beresford 35 Botterill v. Ware Board of Guardians 35 Kimberley v. Dick 37 Contracts not making architects sole arbiters. ScHULTE V. Hopkins 36 Overpayment to builder on architect's certificate. Clerical Error Case 38 — 9— PAGB. " Certificates, an opinion." French Case 39 XIII.— NON-ACCEPTANCE OF TENDERS. Note from Roscoe's Digest of Building Laws 39 Spence v. Harding 39 NosoTTi V. Saunders 39 Thatcher v. England 39 Maini'rice v. Wesley 39 XIV.— DUTIES OF ARBITRATORS Ward v. Cave 40 See also Competition Cases 40 Notes 40 XV,— COM PETITION CASES *. 40 XVI.— ARCHITECT'S LIABILITY WITH REGARD TO INSPECTIONS. Notes 42 XVII.— RIGHT OF SUPPORT FROM ADJOINING PREMISES 42 architects cannot recover for injury to designs Notes 27 agreements between an architect and his client, when necessary 43 35 35 37 36 38 L CASES IN WHICH PROPRIETORS HAVE REFUSED TO PAY AN ARCHITECT'S RIGHTFUL COMMISSION. McLachlan v. Grant, 1886. This was a remarkable case in which the Defendant " thought she knew better than the architect " what the building ought to cost. The Defendant, Miss Grant, authorized the Plaintiff to prepare designs for a school for 800 girls which was not to cost more than ^2,000. Plaintiff told her it could not be done for the money, but she requested plans to be made notwithstanding, and Plaintiff warned her that a building for the site she had purchased would involve much greater outlay. Tenders were asked for and they ranged from ^^5,787 to ;£"4,852. Defendant then dismissed the architect, requiring him to hand over the plans and offered to pay 2)4 per cent, on what she thought the building ought to cost. Miss Grant then took the matter into her own hands, let contracts and superintended the work herself and finally completed a build- ing at the cost of over ^7,000. McLachlan, the architect, then sued her for his commission, basing his claim on 3 per cent, on ;^4,852, the lowest bona Jide tender, and i % per cent, on ;^ 5,750, the estimated cost of the buildings arranged to be carried out as " future exten- sions." Miss Grant made a counter-claim for iJ^Soo as alleged damages for loss of time in completing her building through the refusal of the architect to give up the drawings and specifications, by which she stated she lost several of her pupils. Mr. Justice Cave, in summing up, characterized some parts of Defendant's claim as " monstrous," and the jury gave a verdict for the architect of 2^ per cent, on ^4,852 and ten guineas for extra work in pre- paring sketch plans to i6th scale of the complete design, making a total award of ^131.165. and costs to be paid by Defendant. The Plaintiff had claimed £2x7. 8s. 8d. The difference between his claim and the award must be put down to the peculiar characteristics of jurymen who always think they know better than a professional man what his services are worth. Adams v. Armstrong. Case tried in County Court, Margate, Kent, Jan. 13th, 1881. Mr. Adams, an architect, claimed ;^io balance of his commission for professional services in connection with the erection of some — 12 — cottages for the Defendant Armstrong who refused to pay on the ground that the walls were damp and that the paper he had put on them had come off in consequerce. The borough surveyor reported that owing to the presence "of salt in the work and organic matter in the materials of which the plaster on the walls was composed " the paper had come off. It was a fair sample of plaster work for the particular class of house. The Plaintiff, Mr. Adams, proved that he had warned the Defendant that it was too soon to paper the walls. A compromi.se was suggested and agreed to and judg- ment was accordingly entered for the architect for £6, and costs to be paid by Defendant. • Stevenson v. Stepiien.son. Case tried at the Nottingham County Court, May, 1882. Mr. Stevenson, an architect, was commissioned by Dr. Stephenson to carry out a house for him. Plans were prepared and approved and contracts let. The architect told his client that he ought to employ a clerk of works as an architect could not be expected to visit the building more than two or three times a week, but Defend- ant did not think this necessary. The building was completed and the architect's commission amounted to ;^I33. 12s., of whic^ ;690 had been paid. Defendant refused to pay the balance on the ground that the drains were out of order and the house unhealthy. The court decided it was clearly the duty of a clerk of works to look after these details and if the Defendant chose to save himself the expense of a clerk of works he must abide the consequences for an architect could not be expected to be present to superintend these ivorks. Judgment given for the architect in full. CoRBETT & Sons v. Richmond & Chandler. Tried at Manchester winter assizes, Feb., 1888. Corbett & Son, architects, sued for balance of commission due for services in con- nection with the erection of premises for the Defendants. Defendants claimed that builders' prices were too high and that in measuring up the work the architects had been negligent and had certified to too much work and material. Mr. Justice Cave referred the case to Mr. Ridley, the official referee. Defendants had had the work measured up and these measuren.ents differed only by ^ per cent, from the measurements upon which the architects had certified. Defendants admitted having ordered the work. The actual cost of the building was in the neighborhood of ^10,000, and the referee characterized the charge of negligence as nonsense and reported entirely in favor of the architects. Judgment given accordingly. o« ti fol tol D —13— Bell v. Moss. Tried before Mr. Justice Day at Manchester assizes, 1885. Plaintifif, an architect, sued Defendant, a clergyman, for ;^ 157. 2s. balance of account for professional services and for damage for wrongful termination of a contract, and in che alternative to recover payment for work and labor done. Defendant set up a counter- claim that Plaintiff had received certain moneys on his behalf that he had failed to account for. Mr. Addison, O C, characterized the counter-claim as the most unseemly defence ever laid before a jury. Charges of fraud were withdrawn, but the jury awarded Plaintiff a verdict for claim and counter-claim, damages ^175. Application was made by Defendant's counsel for withholding payment of costs. This was refused. Taylor & Locke v. Green & Sons, June, 1885. This was an important case, as it defines an architect's respon- sibility as regards rights of adjoining owners, about which an architect was uninformed. The Plaintiffs, architects, sued to recover from Defendants ^45 1 7s. 6d, balance of account for profes- sional services in connection with the re-erection of premises in Cannon street and Nicholas Lane, Lon'' )n. Defendants made a counter claim for ^^3,680 on the ground that Plaintiffs had not properly carried on their work, inasmuch as Defendants alleged that they had not sufficiently considered or warned the Defendants as to claims of adjoining owners as regard.'^ ;ight and air, and further, that during the erection of the building the Defendants had been put to great expense settling disputes with the neighbors, and these expenses they now claimed to recover from Plaintiffs. The Plaintiffs contended that they were in no way liable, as they had been especially employed to make plans and do the rest of the work according to express instructions of the Defendants. Jury awarded the Plaintiffs ^389 17s. id. for works and the costs of the action, not entertaining the counter-claim of Defendants. Norman v. Lezant School Board. . . Mr. Justice Giffard, Stonehouse County Court, August, 1884. Mr. Norman, an architect, was employed by Defendants to report on building of school and master's home erected for Defendants, to a.scertain if they had been carried out in accordance with specifica- tions. Mr. Norman agreed to do this for a fee of ;^6 6s. He did so, but the matter was referred to arbitration, in which he was called as a witness, and he now sought to recover additional fees for these additional services. The Defendants paid £6 6s into court together with £2 2s. for expenses. The Judge stated that the architect was certainly entitled to additional remuneration, and verdict was given accordingly for Plaintiff with costs against Defendants. — 14— • TOxMLINSON V. BARNET. Mr. Tomlinson, an architect, was employed by Defendant to prepare plans and carry out some houses in London. The works being completed, the Defendant, an engineer, refused to pay the commission which had been agreed upon, and set up a counter- claim for negligence amounting to ten times the architect's com- mission. He failed, however, to prove any negligence. Judgment was therefore given for Plaintiff with costs against Defendant. ClIORLEY V. CROSSLEY. Another case in which a client refused to pay a rightful commission to his architect, tried before Mr. Justice Manisty and a special jury, August, 1884. Plaintiff sued for fees amounting to £S$ 5s. 6d. for his attendance before arbitrators in two cases on behalf of Defendant. Defendant's grounds for not paying were that the charge was excessive and greater than agreed upon. The Judge heard only the opening remarks of the counsel and the Plaintiff's evidence when he decided Defendant could make no answer to the claim. The jury gave a verdict for the Plaintiff for the full amount of claim with costs against Defendant, including costs of special jury. H AWARD V. KlTCIIING. Suit for charges for time in travelling, before Mr. Justice Fry, 1890. The Plaintiff, an architect, sued Defendant fori^i66 i8s. for professional services rendered at Darlington, and for £160 19s. 8d. for railway fares, travelling expenses, and time spent in the necessary visits to that town. Defendant paid the whole of the first amount into court, and also £y2 2s. of the second amount, as sufficient in his opinion to meet the expenses of the Plaintiff The present dispute was therefore only as to the right of the Plaintiff, the architect, to charge for time in addition to the 5 per cent, commission paid him. Plaintiff stated that he had paid seventeen visits and stayed three or four days each time, and had charged only £1 lis. 6d. a day for time, though the customary charge was i,3 3s., according to the schedule of the Royal Institute of British Architects. Plaintiff was not, however, a member -of that institution. He brought profes- sional evidence to prove the custom of charging for time, one of liis witnesses, Mr. Charles Barry, saying that though it was the custom it was not the universal practice to charge ;^3 3s. a day, but it was not customary to charge for time in supervising work. Mr. J ustice Fry, without laying down any general rule as to architect's charges, thought that the amount paid into court was sufBcient and gave judgment for the Defendant, but divided the costs. See a/so Taj lor and Davis below. —15- Whitmore v. Crarb. Custom as to professional fees refused as evidence. Before Lord Chief Justice Coleridge, Nisi Prius Court, Essex Assizes, July, 1889. Plaintiff, an arctiitect, brought suit to recover his commission at the rate of 5 per cent, amounting to ;^33, for pro- fessional services rendered to Defendant, and brought professional evidence to prove the custom, and as to the schedule of charges of the Royal Institute of British Architects, Lord Coleridge said " he would not accept the dictum of the R, L B. A. in the matter of charges. This or that percentage could not be allowed as customary. The principle he would go upon would be that of quantum meruit, and architects should be paid like other people," English professional journals commenting on this ruling, remarked that the case afforded another instance of the extraordinary misapprehension under which learned judges seem to lie about the architectural profession. In the caseofPARAiRE v. LoiBL, before the same judge in 1881, in which Paraire, an architect, sued for his commission, Lord Coleridge observed that " as to basing a charge upon the prevailing custom of a profession he would not hear of it. It was merely a question of quantum meruit. No body or society had any right whatever to fix their charges at certain sums and say they were to be paid." Whitaker ^/rt/v. The Floating Swimming Bath Co. Before Lord Coleridge. Here again Lord Coleridge had an opportunity of stating his peculiar views with regard to the custom of professional charges. The Plaintiffs,civil engineers, were employed by the Defendants to prepare plans for a bath building to cost .^^ 1 6,000, and for this work the Plaintiffs charged i^ per cent, (or ^^240), and had to sue the Company for therecovery of their charge. Lord Coleridge intimated that this was "an absolutely unreasonable charge," and in summing up said it was "plainly ridiculous." " It was a charge he had often heard architects make, but never knew a jury to sustain. The Plaintiffs were entitled to whatever their labor fairly represented, and that the jury must assess." The jury con- cluded that £yo was sufficient remuneration. See case of C. W. Komeyti below. Note. — No other judge appears to hold the views of Lord Coleridge with regard to custom in professional charges, as witness all other cases reported herein, where professional evidence was admitted without comment, and I can find no other cases in which such evidence has been refused in the English Courts. See Bousfield v. Payne below. Taylor v. Davis. Suit for travelling expenses, tried at Montreal. Mr. Davis authorized Mr. Taylor, an architect of Montreal, to prepare plans, — 16— etc., for a house to be erected at Ottawa, and before work was commenced asked what the architect's charges would be. Mr. Taylor stated that they would be the usual 5 per cent, commission. After completion of the works, the architect sent in his charge for the commission at five per cent., and an additional charge for travelling expenses between Montreal and Ottawa, but made no charge for time. The visits for which expenses were charged were proved to have been all made at the request of the proprietor by letters or telegrams, and were nearly twenty in number. The proprietor, however, refused to pay for these on the ground that no mention was made of travelling or other expenses in addition to the commission when he inquired of the architect his charges. Various architects gave evidence as to the custom of charging for travelling and time in addition, but the judge decided in favor of the Defendant (Davis), because he was not told beforehand that he would be expected to pay anything above the 5 per cent, commission. BousFiELD V. Payne. In this case, before Mr. Justice Morgan, at Toronto, 1890, in the Division Court, the learned judge refused to hear evidence as to professional customs with regard to architects' fees, and stated that he would not admit such evidence until such customs were regulated by Act of Parliament. Charnley v. Kinsley. Case tried in Chicago. Charnley, an architect, brought suit against his client to recover additional commission to the amount of $4,328.55 for additional and particular services rendered by request of his client. The building had to be completed by a particular date, but although great despatch was used in the execution of the work there was birely time to complete it even if everything went on without deiay. Kinsley, the client, and Defendant in the action, requested the architect to give up his whole time to the inspection of the works, verbally promising additional remuneration, but upon the architect sending in his account, refused to pay the amount claimed. The court, however, decided that it was not customary for architects to give all their time to the superintendence of the works and that the architect had done so in this case at the request of the proprietor. Judgment was given for the architect but he was awarded only $2,180. See Stevenson v. Stephensott above. The case of Mr. C. W. Romeyn, architect, who sued a client for his commission, based upon the usual professional charges, and which his client refu.^ed to pay on the ground simply that they were excessive^ was decided in favor of Mr. Romeyn. —17— suit lount by Dy a the ven if and ip his ising his vever, time done t was client ;, and ivere A case reported from the courts in Brussels in which an architect sued his client for the balance of his commission for pro- fessional services, is of considerable interest. The claim included travelling expenses for one journey to Berlin. The defence was that travelling expenses were included in the commission ; that the journey to Berlin was not authorized ; that the work was unneces- sarily delayed by the architect, and that the architect ought to pay for various defects that had been discovered and remedied. The court decided that the claim of the architect for the balance of his commission was fair, being charged at 5 per cent, on the cost ; that necessary travelling expenses were properly charged in addition to the commission, but that the journey to Berlin was not shown by the architect to have been necessary, and that one per cent, with travel- ling expenses was the proper charge for sketches for work abandon- ed. It was proved that the delay in the completion of the works was due to the fault of the architect in not providing the necessary drawings in time, and that, therefore, the architect ought to pay interest at the legal rate of 5 per cent, on the land for the time of the delay. As to the claim that the architect should pay for the remedy of the defects found due to his fault, the Defendant admitted that the architect had not been notified at the time the investigation of the defects was made, and that as the repairs of these alleged defects had obliterated the defects if they existed, the Defendant had by his own act made it impossible to prove the exact cause of the defects by proper expert evidence under the order of the court, and therefore such a claim could not be estab- lished. II. CASES RK COMMISSIONS FOR WORK ABANDONED. Snell v. Carnell. {^A taxed account.) At Stonehouse County Court, before Mr. Justice Giffard, 1883. In 188 r Mr. J. Carnell asked Mr. H. J. Snell to prepare plans and specifications for a house. When these were all ready the Prince- town Railway Co. wanted to run through the land, and then at Defendant's request Plaintiff prepared plans for the laying out of the estate in building lots and roadways. P^or this purpose numer- ous visits had to be made to this property, consultations with Defendant to be held, and tracings of the plans were made. Plaintiff drew up evidence and attended arbitrations. He sent in his account which was taxed and cut down to ^22 2s. gd. which he had received, and he now sued to recover the balance £\2 2s. Qd., and he brought — 18— witnesses to prove the correctness of his charges. The judge said he did not see anything unreasonable considering the iimount of ability, knowledge, learning and skill which Plaintiff brought, and he did not think the amount of costs allowed on taxation was any criterion. Judgment given for Plaintiff for full amount of account and costs. Hesketii v. Rollwagen. Liverpool Assizes, before Mr. Justice Kay, 1883. Plaintiff, an architect, sued Defendant for between ;^200 and ;i^300 for prepar- ing plans for an hotel. Defendant had agreed to pay 2^/^ per cent, for plans if. work was abandoned, and 5 per cent if carried out. Application had to be made by Defendant for a provisional license and for this purpose it was necessary to exhibit the plans of the proposed building to the License Commissioners. Plans \vere made and provisional license applied for, but it was refused because plans did not show any stable buildings. Defendant instructed Plaintiff to prepare drawings of these and estimates which came out between ^8,000 and i^ 10,000. When this was done. Defendant applied again for the license which was granted. Defendant then further instructed Plaintiff to go on and i^et everything ready by a certain date for tendering. This he did, but between the time when they were ready and the end of the month, about a fortnight. De- fendant changed his mind about building the hotel, and when Plaintiff sent in his account pretended to be surprised at the estimates and said they far exceeded his intention and refused to pay anything at all for the work done. Plaintiff proved that Defendant had given no idea of the cost he would go to, but had remarked that a few thousand pounds were immaterial. The defence was that Defendant had stipulated for a building to cost only ;^3,ooo. The jury awarded the Plaintiff i^200 and costs. ^ee Moffatt v. Dickson (preliminary drawings). Keeling v. Begbie. Before Mr. Francis Roxborough, Jr., Lord Mayor's Court, London, 1888. Plaintiff, an architect, said his father who was now dead, was consulted by the Defendant as to the disposal of a large building site in Westminster. A company was formed subsequently for building a large concert hall on the site, and it was arranged that if his father was instrumental in forwarding the scheme for the sale of the site, he should be paid by the Defendant ^50 for his services, but if he was appointed architect for the building, this should be waived. The death of his father occurred i^hortly afterwards, and he the Plaintiff took up his father's practice. He prepared plans for the Defendant for the hall, and estimated the cost at ;^8o,ooo. The scheme fell through, and he charged 2^ per cent, commission. ve be — 19- said It of and any Dunt The defence was that the plans were only competitive, that there was no binding agreement with Plaintiff, and also that the plans were prepared to a great extent before the death of the Plaintiff's father. Defendant admitted that he had offered the Plaintiff ^75, although he considered he only owed him two or three guineas^ but he did so "in order to get rid of him." The jury returned a verdict for the Plaintiff of ^'500. Judgment given accordingly. Pf, an spar- cent. I out. cense f the were cause ucted came ndant t then Y by a I when It, De- when at the sed to that ut had The o cost Court, as now a large uently ed that he sale ervices, )uld be ds, and , plans 80,000. ission. TowNSENi) V. Smith. Toronto, Canada. Before Mr. Justice Boyd. Plaintiff, an architect, sued his client for commission at rate of i per cent, on estimated cost for sketches prepared at request of Defendant, who claimed that he had not ordered Plaintiff to prepare the sketches, but that Plaintiff had done so on speculation, and also that, with the exception of one floor plan and one elevation drawn to a scale of Vo inch to a foot, they were not to scale, and therefore did not come under the head of "sketches," as mentioned in the schedule on which Plaintiff had based his claim. Defendant brought pro- fessional evidence to prove this point, but the witness stated that he had not observed that any of drawings weic to scale, and there- fore his evidence fell through. The judge remarked it was not likely that an architect would do such work on speculation, and ordered judgment for Plaintiff and costs. WYLIE V. WiLLMER. Tried at Liverpool, 1861, before the Assessor. Wylie, an architect, sued VVillmer for his commission of 2^ per cent, for preparing plans and specifications for a building for business purposes on the amount of the lowest tender of ;{i"6,ooo. The Defendant proposed to erect a building to cost i^2,ooo, but while the drawings were in progress, he called repeatedly to see " how they were getting on," sometimes twice a day, and constantly required alterations to be made, which raised the cost of the building considerably, so that the tenders came out at ^6,000. Defendant abandoned the work upon learning this, and expected to pay the Plaintiff's account on this I ,..,is. He proved that he had repeatedly warned his architect that the cost must not exceed ^2,500 at the outside, and had no idea that the alterations he suggested would increase the cost beyond that amount. The Plaintiff proved that he had repeatedly warned Defendant that he was increasing the cost materially. The assessor said it was for the juiy to decide which of the parties in the action was to be believed, and in answer to a juryman stated that they must give a verdict for the Plaintiff for the full amount, or give it against him. They could not give a verdict for payment on ^2,500, or any amount under the ;^6,ooo, because the Plaintiff had been ordered to prepare plans for a build- — 20 — ing to cost a certain sum, and if he had made them for a building to cost much more, he had not done the work he was required to do, and therefore had no claim. The jury then found for the Defendant, and judgment was given accordingly against the architect. Freni) v. Prior. Queen's Bench Division, before Mr. Justice Manisty and a jury, icSSo. The Plaintiff prepared plans, etc , for a house for Defendant to be erected at Maybury to cost £1,200. Defendant did not like the design, and he and his architect visited the site, when Plaintiff suggested that he should build a more expensive kind of house, as more suitable for the situation, and Plaintiff stated that Defendant approved of the suggestion. He consequently prepared other plans and asked for tender.s, the lowest of which was i, 1,950. The Defendant abandoned the work, and claimed that he had not authorized the Plaintiff to go above the $j,200. The jury decided the architect was entitled to recover 3 per cent, on the amount of the tender. i!! Champion v. O'Donov.nn, r/^/. Cork City County Court. Plaintiff prepared designs for the restoration of a church, of which the Defendants were the building committee. The drawings were sent to the diocesan architect for approval. He required some slight alterations, and after Plaintiff had made these, the committee abandoned the work, and decided to build an entirely new church. It had been arranged that the Plaintiff should bo jiaid 33^ per cent. — 2}4 per cent, for the draw- ings and specifications, and 1 j^ per cent, for quantities, making ^'139 i8s. The defence was that the plans were unsuitable and impracticable ; that the diocesan architect had reported to this effect, and that, moreover, the Plaintiff bought the drawings from a young man, and they were consequently not what they had author- i/rd him to prepare, The judge in summing up informed the jury that the skillfulness and experience of the architect were not in question at all. It was for them simply to decide whether the Defendants had ordered the drawings, and if they had agreed to pay the Plaintiff as stated. The jury lound a verdict for the Plaintiff of ^" 1 20. Mr. Justice Creswell (22 L. J., C. P. 273\ has defined "PRELIM- INARY Drawings" to be such as are "to be approved of by the party for whom the plans are prepared." It must depend entirely upon what agreement has been arrived at between the architect and his client for whom he has prepared preliminary drav.'ings as to whether the architect can recover any payment for them if the work proceeds no further. Without any u te to fa^ to ore ngto J do, dant, jury, ndant t like lintifl ISC, as ndant plans The d not ecided unt of for the uilding [ect for laintiff ecided \at the J draw- aking )le and to this from a author- ic jury not in tier the reed to laintiff RKLIM- by the arrived irepared ver any out any apjrccmcnt as to payment for preliminary drawings, or if the architect is unable to prove that the order given him to prepare them implied remuneration for them, this definition of Mr. Justice Creswell signifies that they as " preliminary drawings " were {)re- pared only on approval. In the case of MoFI'ATT v. Die KSON, in which Moffatt, an archi- tect, sued Dickson, chairman of a committee for a lunatic asylum. Moffat had been ordered to prepare plans for ap{)roval of the com- mittee to be submitted to the lunacy commi;.sioners, for which it was agreed that he should be i)aid ^"437 los. lie prepared a set of plans which, however, did not meet with the approval of the lunacy commissioners. He then prepared others which were also rejected, and he was ordered to prepare still another set according to their suggestions which were to be read)' for a fi.xed date, the committee notifying Moffatt that unless these were satisfactory they must find someone else to go on with their work. The plans were prepared and sent in but did not meet with the approval of the committee, who then dismissed Moffatt from their employ. Moffatt brought action to recover his commission as agreed, but the court decided that he had been made aware of the ordeal his drawings would have to pass through, that it was his want of knowledge which prevented them being approved, and that therefore he had no claim. In the case in New York in which an architect, XOWRV, sued the owner of a lot on Broadway for the value of plans for a pro- posed building on that site. The owner, it was proved, had in con- versation ivitlt Nowry induced Jiini to prepare plans with the expecta- tion of remuneration. The owner denied having employed Nowry, but the jury decided that the conversation amounted to employ- ment and the court ordered judgment for the architect. There was a cas in Baltimore in which an " architect was asked to make plans for the improvement of a piece of building property. Plans were prepared but as no idea had been given to the architect as to the amount the owner would spend he made no estimate of cost. Tenders were asked for when the owners decided upon radical alterations necessitating new plans. These were tendered on but the owners did not go on with the work, and when the architect sent in his account for 2]/^ per cent, on the lowest tender they refused to pay. Professional evidence was produced to show the custom of the profession, and the jury gave a verdict in favor of the architect, though at a smaller rate than that he claimed. Schneider v. Waggaman. Tried at Washington Circuit Court. Here the proprietor refused to pay the architect (Plaintiff) for preliminary sketches he had ordered on the ground that he did not propose to go on with the — ?2 — iilii work. The architect sued him for $150, and was awarded by the jury $100; some of the jury were for the full amount, some were for awarding him $50, so they compromised. Jud^mient entered accordingly. WiiiTK V. Marsh ALL. I ludson Co., New J cr.scy. County Court before J udge McDermot. Mr. White, an architect, sued for his commission for preparing designs for a house that could be erected for $6,000, and he brought expert witnesses to prove that his design could be carried out for $5,900. Defendant claimed that the house could not be built for less than $7,500 and based his claim upon bids he had obtained. He admitted ordering the plans, but stated that now they were of no use to him. Judge decided for the Plaintiff, awarding him 3^ per cent, on $5,000 and costs. FiCKKNs V. Nkw York Athletic Club. The New York Athletic Club employed Mr. Fickens to pre- pare designs for a building to suit the centre of a site purchased by ihcm, and designs for another to suit the corner of the same site. The corner building was decided on and the architect proceeded to obtain tenders, when he received a notice stating that the club had obtained a bid (without his knowledge) for this building of $160,000, far above the proposed outlay. Mr. Fickens went at once to the committee and offered to get a bid from a responsible builder under bond f 'r $105,000 for the building according to his design. This was refused and another architect, Mr. II. W. Clinton, was forth- with called on and employed to carry out a design at the cost of $118,000. The architect then brought suit to recover his commis- sion on the drawings he had prepared. The case was referred to arbitration and the architect was awarded the full amount of his claim. RoMEYN V. Sickles. Sickles was the promoter of a club or company for the erection of an apartment house, and arranged with Romeyn, an architect, who asked to be allowed to prepare plans for the building, that if the club was formed or the building carried out by him, Romeyn should be paid for his services. The club was not formed and Sickles gave up his scheme and the architect sued Sickles, trying to make him personally responsible. The case was decided on appeal against Romeyn. Y the were tercd rmot. arin^ DUght jt for It for aincd. crc of n 3>^ ) pro- sed by ic site, ded to lb had j3o,ooo, to the • under This forth- :ost of )mmis- rred to of his rection chitect, that if omeyn led and trying ided on III. CASES RK COST OF imiLDINGS AHOVE CONTRACT. EnimooK v. \VRTf;iiT. Case tried at Denver, Col. ICdbrool\,an architect, was employed to prepare plans for a house to cost about $3(3,ooo. Contracts were let and the house completed, but the total cost was $4i,oCK). The client (W^right) refused to pay commission on the additional $5,000, and was sued in consequence by the architect. The judge laid down that when an architect was asked to prepare designs for a house or other buildings to cost in the nciglihorhood of a certain sum he could not be held responsible for what it cost to complete above that sum. Judgment therefore given in favor of the architect. A case decided in the French courts in which the cost of the building when completed was nearly double the amount of the architect's estimate, was decided in favor of the architect v/ho sued for his commission, basing it upon the total cost of the building, proving that the additional cost was for works order ;d by his client from time to time beyond that which was contracted for. The client did not object to pay part of this, but when the bills came in he went and saw the builders and got them to make considerable reductions in their bills to which they agreed to avoid delay in settlement. The client (the Defendant) wished to pay a commis- sion to the architect based upon the reduction of the bills. The court, however, deciJed that the actual cost of the building was as stated in the bills before any reduction had been made and that the architect's commission must be based on this amount. In another case t i at Paris, July, 18S5, necessary alterations and repairs were estimated by an architect to cost between 7,000 and 8,000 francs. During the works the architect notified the pro- prietor that a great deal more would have to be done than was at first considered necessary and the total cost came out at about 54,000 francs. The proprietor sued the architect for damages, but the court held that he had no case against his architect. ill: 1 1 'if i:' InMlli:' IV. CASES OF LIABILITY OF OWNERS FOR GIVEN BY THEIR ARCHITECTS. ORDERS Santer v. Hasler & Co. Before Lord Coleridge and a special jury. The Defendants employed an architect to prepare plans for and carry out certain mercantile buildings. When the works were completed a lofty chimney was found to be out of the perpendicular and the architect without communicating with his clients, the Defendants, ordered the builders, the Plaintiffs in the action, to adopt a novel plan of tying a rope round the chimney and hauling it upright by a powerful winch. The result of this remarkable remedy was that the chimney was pulled down. The Plaintiff's were ordered to rebuild it and now sued the owners for payment for this work. The defence was that the Defendants had not ordered the architect to attempt to have the chimney straightened in this manner and that he had no implied authority to give such orders. Lord Coleridge ruled that such was not the fact. The architect was the agent of the owners and therefore he would give judgment for Plaintiff, but ordered execution to be stayed in order that Defendants might have time to give notice of appeal against his ruling. [Note. — It does not appear that this case was carried any further.] See Byrne & Wihnot v. Stafford (Dismissal of Architect. — No. vii.) (Counter-claim.) V. CASES RE ORDERS GIVEN BY OTHERS PROPRIETOR. THAN THE Morris v. Cutter. The Plaintiff was the owner who brought suit on appeal against his architect, Mr. Manly Cutter, of New York. Mr. Morris had com- missioned Mr, Cutter to carry out a design for a private house approved by him and while the works were proceeding had occasion to leave home for some time. During his absence, Mrs. Morris, wife of Plaintiff, ordered some very costly interior work which the architect had carried out, accordingly bringing up the cost of that particular part of the house from $5,000 to $12,000. Mr. Cutter brought suit to recover his commission for this work —25 — which Mr. Morris refused to pay. The case ran on for years and was finally decided in Mr. Cutter's favor. Mr. Morri.'. appealed so that execution was stayed and the case has not yet been concluded. jainst corn- house had Mrs. work p the 2,000. work VI. CASES IN WHICH ARCHITECTS HAVE RECEIVED AND ACTED UPON ORDERS NOT UNDER SEAL, • GIVEN BY CORPORATIONS POSSESSING SEALS. Hunt v. Wimbledon Local Board, 1885. Mr. Hunt, architect, at request of the Wimbledon Local Board, prepared plans for a building which were used by the Board to obtain tenders from contractors. Tenders came out too high, and the Board refused to pay on the ground that the buildings were of too costly a character. The jury found that the Board had ordered the plans to be prepared, but the court held that as the orders of the Board were not given under seal, the architect could not recover, section 85 of the Public Health Act, 1848, enacts that every contract above ^10, and section 174 of the Public Health Act, 1870, enacts that every contract above £so, must be in writing, and sealed with, the seal of the authority. The court held that this was imperative, and not a matter of choice, and that any other method of contracting was ineffectual. Therefore the architect con/c^ not recover. Young v. Mayor and Corporation of Lfamington, Clark v. Guardians of Cuckfield Union, and Mellis v. Shirley Local Board, similar cases, decided against the architects, the contracts being over £^0 in amount. Scott v. Great and Little Clifton School Board. A similar case, but decided in favor of the architect by Mr. Justice Mathew, 1884. He pointed out that although the School. Beard was a Corporation and had a seal, yet that by section 35 of the Elementary Education Act, 1870, it might appoint a clerk,, treasurer and other officers ; that by rule 7 in the schedule of the Act the " appointment of any officer of the Board may be made by a minute of the Board, signed by the chairman and countersigned by the clerk, and any appointment so made shall be as valid as if made under the seal of the Board." Mr. Scott was appointed "Architect to the Board." Mr. Justice Mathew found that the architect was a " necessary officer," and that his appointment was entered upon the minutes, and that directions were given to him at Board meetings and recorded in the minutes. He therefore decided that the architect could recover. —26— See case Norman v. Lczant School Board (rightful commission), No. r, in which the amount claimed was below £$0, and nothing was said as to agreement being under seal or not. Mr. F. Meadows White, Q.C., commenting on this subject said : *' A difficulty does arise when the contract between the architect and the School Board does not follow on or arise out of work done by him as an appointed officer of the Board, but is the result of an isolated transaction in the ordinary way of business In such a case I should consider it very doubtful indeed whether the architect could recover where the contract was not under seal, and I should certainly advise the architect under such circumstances to obtain a scaled contract." Power v. Bowmanville School I^oard. Mr. Power, architect, of Kingston, Ontario, brought suit to recover commission for professional services in connection with the preparation of plans for the I3cfendants, and brought professional evidence as to the custom with regard to his claim. Defendants produced no witnesses, and did not deny that they had employed the Plaintiff, but put in the plea that their seal was not attached to any agreement with the Plaintiff. Court, though sympathizing with the architect, held he could not recover. Judgment for Defendants accordingly. VII. CASES OF DISMISSAL OF THE ARCHITECT. m BiRCFi V. Earl OF Shrewsbury and Talbot. Mr, Birch, architect, had been employed by Lord Shrewsbury to carry out restorations to Ingestre Hall after it had been damaged by fire, and to make certain alterations and add a stable. The work was nearly completed when Mr. Birch was summarily dismissed without any explanation After waiting a long while in the hope of some explanation he proceeded to make out and send in his bill for his services. For some reason or other he had originally agreed not to make any charge for a portion of the work he carried out, but since his abrupt dismissal he considered the circumstances were altered and included in his bill charges for this work also at the usual rates, Mr. Birch, finding he could get nothing out of Lord Shrewsbury, sued him and brought as witnesses on his side Mr. Charles Barry and Mr. William Young. Mr. Charles Barry gave his evidence, whereupon Lord Shrewsbury's counsel ga^'e up the case and agreed to settle the bill and pay all costs if the action was withdrawn, which was accordingly done. Lord Shrewsbury was held to have broken his contract with Mr. Birch without cause. —27— Note. — Proprietors sometimes insist on alterations in the design of a building after the work has been begun ; desiring, for instance, a bay window to be thrown out to such a room or some feature to be added that in the opinion of the architect will entirely spoil the effect of his design, and despite the protests of the architect will have his way, and the building has been completed, the result being that architecturally it is spoiled and the architect thinks his reputation will suffer in consequence. However, he must make the best of his annoyance and disappointment. As under T^nglish and United States laws he could Diaintain no action for damage to his reputation under these circumstances. [?ivz up ; action ;wsbury it cause. Byrne and Wilmo r v. Staeford. Chertsey County Court, before Judge Lushington, May, 1885. Messrs. Byrne and Wilmot, architects, were employed by the Defendant, a doctor, to prepare plans for and carry out for him a residence at Bagshot, and it was agreed that their commission should be 5 per cent, on the lowest estimate, no charges being made for travelling expenses as one of the firm had other work in the neigh- borhood which required constant visits. The builder of the doctor's house failed and Defendant asked his architects to prepare specifi- cations for the completion of the works for which a fee of three guineas was agreed upon. Owing to the illness of the senior partner a delay of a week was caused, and the Defendant wrote a hasty letter dismissing Plaintiffs altogether, who then sent in an account for ;^43, which was not disputed, but Defendants set up a counter- claim for £^7, claiming that certain omissions had been made from the plans and specifications by the contractor before he failed on the orders of the architects. The Plaintiffs claimed their right to make alterations as the work proceeded as they saw that such were necessary, the cost either for deductions or additions to be measured at completion and valued according to priced quantities prepared by an independent surveyor which formed part of the contract. The judge pointed out to the jury that architects were not to be held responsible for omissions of the builder unless negligence on their (architects') part was proved. There was no evidence of such negligence. The Defendants had made a serious mistake in dis- missing the architects without sufficient cause. The counter-claim, if made at all, should be made against the estate of the builder, not against the architects, who were only his agents and acting within their rights. The jury returned a verdict for the Plaintiffs for the full amount of their claim. See Bell V. Moss — (rightful commissions. No i). See McLachlan v. Grant — -(rightful commissions. No. I). See Fickens V. New York Athletic Club — (work abandoned. No. 2). • VIII, CASES OF RESPONSIBILITY OF ARCHITECTS IN CONNECTION VV^TH DEFECTIVE WORK. 'liiii I 111, ! » ■■ MosDELL V. Mitchell, eta/. *Jan., 1891. MoscL 11, a widow, claimed damages from theowner (Mitchell), the architect (Miller), and the builders (Oldrey & Co.), of a house in Great Titchfield Street, London, for the death of her husband through the falling down of the house. She claimed ^250 for herself, and ^^50 for each of her three children. Mitchell employed Miller to prepare plans, etc., for the house, and the con- tract was finally let to Oldrey & Co., builders, Oldrey & Co. employed Mosdell as carpenter and joiner, and proceeded to erect the house from Miller's drawings in August, 1888. All went well till November 9th. when the house collapsed, killing five men, of whom one was Mosdell, the husband of the Plaintiff. The cause of the downfall being a basement wall which was too thin for the super- imposed weight. The case was tried before Lord Coleridge, who held that Mitchell having employed an architect and contractor, had done all that he could to ensure safe building. The architect and builder did not appear. Lord Coleridge stated that " as a prima facie case has been made out again.st them, which they are not here to answer, the jury must consider the question of damages. You (addressing the jury) must not give indemnity, only compensation, and allocate the sum between the widow and the children." The jury found for the widow ^250, and for each child ^^50 as claimed. Lord Coleridge gave judgment accordingly against Miller (architect), and Oldrey & Co. (builders), but for Mitchell (the proprietor). See Stevenson v. Stephenson (rightful commission. No. i.) See Adam V, Armstrong {x\^\t{\x\ covavcH^'SAon. No. i.) See Moneypenny v. Hartland (inaccurate drawings No. IX.) Note. — If damage ensues from defective work, in order to maintain a claim against the architect it is necessary to prove that it has occurred through carrying out his orders either as shown by drawings or specifications, or by subsequent orders written or verbal. If failure has occurred through following the plans and specifications, an architect may be able to save himself from liability if he can prove he has given orders correcting the mistakes therein. The builder will, no doubt, try to save himself at the architect's expense, so that it is advisable to give such correcting orders in writing, and to keep a copy of them. Where the builder has acted on his own responsibility and executed work without any orders from the archi- tect, and failure occurs, he must be held liable unless he can prove IN —29— that the architect inspected and passed it as satisfactory. Where no clerk of works is employed, and the builder is left to put in what kind of work he pleases, the architect must prove that the failure has occurred from work done contrary to the spirit and meaninf^ of the drawings and specifications. A builder at law is as much bound to know his own business as anybody else, and he cannot save him- self any more than an architect can by an attempt to put the responsibility for his bad work upon the shoulders of another. Indeed, it has been held that a builder ought to refuse to execute work which he knows or ought to know will result in the failure of the structure. In the event of a difficulty as to the exact meaning of the drawings or specifications, the builder must ascertain from the architect what is intended, or he executes the work on his own responsibility, and will be held liable. See Byrne atid IVilviot v. Stafford {d\src\\s?,3.\ of architect. No. VII.) Hubert v. Aitken. Aitken is the owner of an apartment house erected from the designs and under the superii]tendence of Hubert, an architect. In connection with the steam heating apparatus the architect had consulted with the heating engineer about the size of the flue required, and the flue was built according to his suggestions and instructions. The architect sued the owner for the balance of his commission, but the Defendant claimed that this flue was unser- viceable and caused too great a consumption of coal. The court decided that it was the duty of the architect to know all about the requirements of the chimney and that he and not the engineer was responsible. ig, and See Moneypenny v. Hartland (Inaccurate Drawings. No. IX.) In cases where an owner interferes and gives his orders to the builder, changing the architect's orders, and has the work done in a way that differs from the plans and specifications and in a manner that will endanger the stability of the structure, it is the architect's duty, and to his advantage as relieving him from responsibility, to notify the owner, in writing, of the probable result of his inter- ference. French cases prove that an architect cannot be held responsible for the failure of work which, when completed under his super- vision, was perfect. The subsequent failure, resulting from bad workmanship, is entirely the fault of the contractor. A case tried in the Fourth Chamber of the Court of Paris, November, 1886, it was decided that where an owner insists on work being carried out according to his wishes and in a manner that the architect and contractor declare to be unsafe, and they finally agree to carry it out only on receiving from the owner a —30— written discharge from all responsibility, th-.y are only saved from responsibility as far as the owner himseL is concerned, and are liable to prosecution in the event of injury to life or limb through failure of the work. But in the Court of Cassation it has further been decided that it is not sufficient to avoid responsibility of a constructor to establish that he only carried out the plans and specifications and instructions of the owner. The architect or builder must absolutely refuse to execute work entrusted to him under conditions which may endanger its stability. A case decided in Paris against the architect and owner was one in which tenants sued for damages owing to the floor of a new building they occupied giving way through the rottenness of the joists. The owner, before the building was commenced, sent the architect and contractor to pick out beams and joists from the yard of a dealer in building material, whom he paid for the stuff selected. The architect and contractor together made their choice of such timbers as they thought fit, and they were incorporated in ihe building with the result related. The judge condemned the architect to a fine of one hundred francs and the owner fifty francs, and to pay together to the tenants two thousand francs and costs. IX. casp:s of inaccurate drawings. II i MONEYPENNV V. HaRTLAND, ^/