UAox. THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW GIFT OF John Hogan The Law of Architecture and Building A CONSIDERATION OF THE MUTUAL RIGHTS DUTIES AND LIABILITIES OF ARCHITECT OWNER AND CONTRACTOR, WITH APPENDICES AND FORMS. BY CLINTON H. BLAKE, JR., A.B., A.M., LL.B. of the Nenu York and Federal Ears WITH A SPECIAL INTRODUCTION BY AYMAR EMBURY II Member American Institute of Architects NEW YORK THE WILLIAM T. COMSTOCK CO. T Copyright, 1916 BY CLINTON H. BLAKE, JR VAIL-BALLOU COMPANY To M. C. B. SPECIAL INTRODUCTION BY AYMAR EMBURY II., (Member American Institute of Architects.) Architects as a class are indisputably earnest and careful in their work, but very properly de- vote the most part of their attention to construc- tion and design. The business end is to most of us incidental, and while we try to keep our ac- counts straight and our contracts in form, our legal rights and obligations and the legal rights and obligations of our clients and contractors re- ceive far less consideration at our hands than they should. Because of the attention which we pay to the construction, we do not very often erect unsafe buildings, but our handling of the legal and busi- ness end of our work has not been commensu- rately good. If we do not have more trouble with our contractors, our owners or our Building De- partments, it is because of their complacence, and not because of our understanding of sound legal and business principles. Conscious violations of the building law by architects are not frequent, yet they are by no means uncommon, and are often forced by the poorly written and untechnical statutes of many of our States. In my home town for example, vi SPECIAL INTRODUCTION the building code for many years provided that all cement mortar should be mixed with long cat- tle hair: of course that particular section of the ordinance was violated as often as there was a building erected in the town, and yet what else could be done ? However, ignorance of the building code does not as a rule bring as serious consequences upon the head of the architect as does ignorance of the rather unusual quasi-judicial position which he occupies, and that more architects do not get into very serious trouble is probably more due to the complacence of their clients, than to the correct- ness of the positions assumed by the architects. As a matter of fact this book came to be written because Mr. Blake, acting as my attorney, discov- ered that I had very curious and false notions of my duties and responsibilities, and finding that the clients for whom I worked, had other views equally curious and untenable, the idea naturally suggested itself that brief and authoritative state- ments of the law in its relation to architect and client alike, would be valuable. Another thing which makes such a hand book almost a necessity is that a copy of the laws would not help much, even if one took the time and trou- ble to wade through a young library of "Acts" to find the ones which concern building and build- ing contracts. The law is made as much by the interpretations placed upon it by various judges, as by its letter; and the judicial precedents and interpretations established in the different juris- SPECIAL INTRODUCTION vii dictions are of vastly more importance than the mere texts of the statutes alone. Of course I am writing from the standpoint of the layman, and without much real knowledge of the abstruse workings of the legal mind ; but that is the way it seems to me. Therefore I wish to find out just what I ought to do to protect myself from my client and to protect my client from my builder. In case of trouble I must go to a lawyer, unless from previous cases of similar kind I have gathered a knowledge of the proper steps to take ; it is certain that I will not go to a lawyer until I find myself in trouble, and then I may find that I have done all sorts of things which I ought not to have done, and left undone those things which I ought to have done, and there is no health in my case. Yet a little care and foresight and especially a little knowledge would have kept me from doing things (to a lawyer) obviously fool- ish and even criminal. Most architects do not at all know how much authority is conferred upon them, and most cli- ents do not know either, so that, depending upon the temperament of the architect and of the owner, in some jobs the architect becomes a mere servant, who has to carry out the owner's man- dates without regard to contractual limitations, while in other jobs the architect becomes a sort of petty dictator, whose statements are accepted by the owner and the builder as final and binding. This condition of affairs exists and can only continue to exist because of the very complete viii SPECIAL INTRODUCTION ignorance on the part of the owner and of the architect as to the exact status of their relations. Most of us perhaps are willing to usurp authority if we think no ill will follow, but most of us also would be very careful if we knew that such usurpation might have the most unpleasant financial consequences. The architect can afford neither to be the tool nor the boss of his client, and he should be able to proceed with his work with fairness to the owner and to the builder, and without fear that in the exercise of his authority, he may become liable to discharge without com- pensation. I think most architects have more trouble with clients than they do with builders. This is per- haps only natural, since builders are in the busi- ness all the time and know the ropes, at least in a general sort of way, while a very great majority of owners are building for the first and only time, and have very little knowledge of what they are undertaking when they sign a contract, or even when they ask an architect for sketches. The question of the architect's liability is some- thing that most architects do not understand at all. I was very greatly surprised to learn that I had no authority to alter the definite letter of the specifications or allow any departure from the terms of the contract without the consent of the owner. Prior to the receipt of this information I had probably never constructed a building in which the specifications were literally adhered to, and it is also possible that I have not constructed SPECIAL INTRODUCTION ix one since; but at least I have been careful to see that I permitted no changes, without the owner's consent, which would cost any very great amount to alter back to conform with the original speci- fications. Probably most architects do permit minor changes which result in the betterment of the job, or which make things easier for the contractor without detriment to the job, and for which there is no extra asked or expected. Architects are ac- customed to use their own judgment in making these changes, and most clients are willing to accept the architect's judgment on such points. However when a careful client, over zealous for his own interest, discovers that such a change has been made, over his head, as he thinks, he is apt to place the worst possible construction upon it. He can if he likes, insist upon work being done in exact accordance with the original contract and it may cost the architect a lot of money to do it. I remember in one of my own jobs, I had speci- fied that nothing but galvanized nails should be used in the exterior trim ; in some way the clause slipped by the contractor (I do not think there was any ill intention on his part) and a very con- siderable portion of the exterior trim was applied to the house, between inspection visits, with ordi- nary nails. To remove these nails would have destroyed the trim, and would have resulted in the loss to the contractor of a very considerable sum. Furthermore it would have taken from x SPECIAL INTRODUCTION four to six weeks to secure new trim, and have delayed the job sufficiently to mean extreme dis- comfort to the owner. I did what I thought fair and best; had the nail heads well set in and put- tied at once, and galvanized nails added in suffi- cient number to hold the trim. I am informed that by this act I assumed a rather grave respon- sibility, yet I hardly see that any other action would have been beneficial to the job. I know now that I should have secured the prior consent of my client in order to clear myself of any pos- sible financial responsibility. It is cases like this that have made me ex- tremely glad to have this book of Mr. Blake's to read over. In the first place I am going to fix the general principles of the law in its relation to the architect, builder and owner, firmly in mind, and in the second place by use of the index I can discover what I should do in any particular case where there is a possibility of trouble arising. Of course in a case of actual trouble, I shall still go at once to my lawyer, but I shall be able to go with my record absolutely clear, and with the cer- tainty that both the law and its interpretation will be on my side. AYMAR EMBURY II. New York City, October, 1915. AUTHOR'S PREFACE During the years 1913-14 I contributed to Architecture a series of articles the purpose of which was to define and set forth, in compara- tively simple and yet practical form, the respective rights, duties, and liabilities, of architect, owner, and contractor. The request for the preparation of these articles was born of the realization by the publishers of Architecture of the fact that, among architects especially, the legal rights and liabilities affecting the architectural profession were, in general, neither appreciated nor understood, and of the desire to place before them a statement of the basic rules of law governing and affecting the practice of their profession, in a form which would be at once sufficiently free from special legal phraseology to be understood by a layman, and at the same time sufficiently comprehensive and detailed in the citation of cases to enable the reader to refer to the leading cases if desired. The desire which has been expressed that the articles contributed to Architecture be published in a fuller and more detailed form, and in a form available for general reference and office use, is the raison d'etre of the present volume. The text has been enlarged and revised and additional cita- xii AUTHOR'S PREFACE tions of recent decisions added. There has been added, also, a table of cited cases and a number of special appendices and forms. My endeavor, in general, has been twofold: First, to provide a text which will enable the archi- tect, owner, or contractor, to understand or read- ily ascertain his respective duties and liabilities, and the elementary and general legal rules which govern them; second, to make the discussion of the various points treated sufficiently detailed and technical so that it may be of aid to the legal, as well as to the architectural, profession. For this reason, especially, the citation of authorities has been made as thorough and as comprehensive as possible. There will be found collected, in considerable number and detail, citations of authorities cover- ing the various matters referred to, and illustra- tive of the manner in which they have been treated and passed upon by the courts of the sev- eral States and especially by the courts of New York, by the Federal courts, and by the courts of other countries. The cases cited have been per- sonally checked and verified and an earnest en- deavor made to insure their accuracy, both in cita- tion and in application. There are certain broad and many less broad but none the less vital principles, governing the rights, duties and liabilities, of architect, owner, and contractor, which it is essential they should understand, if they are to be able to deal with one another with a minimum amount of legal contro- AUTHOR'S PREFACE xiii versy, and with a proper and desirable degree of mutual understanding and satisfaction. The general right of the architect to compensation, the ownership of plans, the right to charge for preliminary sketches and preliminary work, the respective rights of the parties under the lien laws of the various States, the ever troublesome questions of estimated cost, extras, alterations in plans and superintendence all of these are mat- ters which, to one acquainted with the broad gen- eral legal principles by which they are governed, will present no great amount of difficulty but, to another not so warned and forearmed, will pre- sent almost innumerable opportunities for serious financial loss, unnecessary and expensive litiga- tion, misunderstandings with clients, architects, or contractors, as the case may be, and a very con- siderable amount of entirely unnecessary worry and difficulty. Part I of the text deals with the relationship and the mutual rights and liabilities of the archi- tect and the owner. Part II deals with the relationship and the mutual rights and liabilities of the owner and the contractor. Part III deals with the matter of liens, includ- ing the lien rights of the architect, of the con- tractor, and of the subcontractor. Part IV deals with the relationship and rights and liabilities of the architect and the builder, so far as they are not necessarily referred to and dis- cussed under the prior headings, and contains a xiv AUTHOR'S PREFACE general summary of the more important points in the text, from the point of view, especially, of the architect, together with general suggestions based thereon. The Appendices contain a number of selected decisions in leading cases for general reference reading supplemental to the text, the new Stand- ard Documents, Forms, Canons of Ethics, and Schedule of Minimum Charges of the American Institute of Architects, and the Schedule of Charges of Architects, as approved by the New York Chapter of the American Institute. The special forms which follow Appendix E are adapted from forms used in actual court proceedings. They include a number of the more useful and more generally needed forms in lien actions. It has been thought unnecessary to en- cumber the text with all the forms required from time to time in such proceedings, in view of the many excellent forms already published, and the fact that it is not the purpose of the present text to deal exhaustively with the subject of liens, but rather to emphasize those points therein which are especially applicable to the mutual relations of the architect, the owner, and the contractor. For special or more detailed investigation as to any particular point in the text, reference may be had to the special authorities dealing with that point alone, as distinguished from the general subjects which it is the purpose of the present pages to discuss. I wish to acknowledge my indebtedness in gen- AUTHOR'S PREFACE xv ft eral to all of the standard legal digests and en- cyclopedias, and to the various authors to whom I have endeavored to give full credit in the refer- ence notes. I must acknowledge, especially, the courtesy of The American Institute of Architects, in granting to me permission to publish the Stand- ard Documents, Forms, Canons of Ethics and Schedule of Minimum Charges issued by the In- stitute and which comprise Appendix B. A simi- lar acknowledgment is due the New York Chapter of the American Institute for the permission granted to publish its Schedule of Minimum Charges. If the following pages prove helpful in any way to my many good friends in the Architectural pro- fession or to my fellow-members of the Bar, I shall feel amply repaid for the time and effort given to their preparation. CLINTON H. BLAKE, JR. New York City, October i5th, 1915. TABLE OF CONTENTS. PART I. THE ARCHITECT AND THE OWNER. CHAPTER I. THE RELATIONSHIP IN GENERAL. [References are to Pages.} i. Similar to Other Professional Relationships 3 2. Exceptions to Rule 3 3. Absolute Good Faith Required 5 4. Architect to Have No Concealed or Conflicting In- terest in Contract 6 5. Limitation of Rule Estoppel of Owner 9 6. Assumption of Good Faith 10 CHAPTER II. THE ARCHITECT AS AGENT OF THE OWNER. 7. Importance of Agency Relationship 12 5 8. Agency, Express and Implied 12 9. Extras 13 10. Illustrations of Rule 18 ii. Other Limitations on General Agency 23 12. Special Agency To be Carefully Exercised 25 13. Estoppel of Owner 26 14. Delegation of Powers The General Rule 27 15. Limitation of Rule 28 16. Due Care Required in Delegation of Authority 30 17. Power to Act in Emergencies 31 18. Dangers of Implied Authority 32 19. General Precautionary Suggestions 33 xvii xviii TABLE OF CONTENTS [Reference* are to Pages.} CHAPTER III. THE COMPENSATION OF THE ARCHITECT. 20. Introductory 36 21. Theory of Recovery Contract and Quantum Meruit 37 22. Recovery in Absence of Special Conditions or Agree- ment 39 23. Effect of Specified Conditions . 40 24. Conditions Re Cost 40 25. Limitation of Rule 42 26. Necessity of Delivery 44 27. Delivery and Acceptance Distinguished. 46 28. Necessity of Actual Contract Custom Alone Insuffi- cient to Sustain Recovery 47 29. Illustration of Rule 48 30. Competitions 52 31. Proper Care and Skill Required 53 32. Modification of Contract 54 33. Rescission of Contract by Owner Preliminary Sketches 55 34. Illustration of General Rule 56 35- Cannot Compel Client to Complete 57 36. Measure of Damages on Refusal to Complete 58 37. Basis of Computation of Value of Services 58 38. General Suggestions 61 CHAPTER IV. DUTIES AND LIABILITIES OF THE ARCHITECT. 39. In General 67 40. Plans and Specifications 69 41. Mistakes 69 42. Negligence Measure of Damages 69 43. Limitation of Rule Architect not Liable if Plans Not Adhered To 70 44. Burden of Proof Illustrations of Rule 70 45. Repairs and Superintendence 74 46. Reasonable Care and Diligence Required Illustra- tions of Rule 75 47. Negligence a Question of Fact 86 48. Burden of Proof 86 49. Architect as Arbitrator 86 50. Certificates 87 XIX CHAPTER V. DEATH OF ARCHITECT AND OWNERSHIP OF PLANS. 51. Death of Architect 89 52. Ownership of Plans 90 PART II. THE OWNER AND THE CONTRACTOR. CHAPTER I. IN GENERAL. 53. Introductory 95 54. Compensation of Builder Extras and Modification of Contract 95 55. The Architect's Certificate 101 56. Damages 107 57. Right to Plans 109 58. Liability of Contractor for Work of Subcontractor. ... no 59. Recoupment from Subcontractor no 60. Time of Payment in 6l. Substantial Performance in CHAPTER II. REQUISITES OF CONSTRUCTION CONTRACT. 62. In General 113 63. Importance of Statutory Provisions 117 64. Void and Illegal Contracts 117 CHAPTER III. TERMS AND OPERATION OF BUILDING CONTRACT. 65. The Architect as Arbitrator 119 66. Limitation of Rule 120 67. Extras 122 68. Right of Owner to Complete 124 69. Suspension of Work by Mutual Consent 125 XX TABLE OF CONTENTS [References are to Pages.] 70. Liquidated Damages 125 71. Contract Not to Usurp Jurisdiction of the Courts 130 CHAPTER IV. "THE STANDARD DOCUMENTS." 72. In General 133 PART III. LIENS. CHAPTER I. IN GENERAL. 73. Definition 139 74. History of Lien Legislation 140 75. Early Conception and Development of Doctrine 141 76. Constitutionality 142 77. Lien a Statutory Remedy 143 78. No Personal Liability 144 79. Necessity of Contract 144 CHAPTER II. THE LIEN OF THE ARCHITECT. 80. Development of Doctrine 147 81. Importance of Superintendence 148 82. The New York Doctrine 150 83. The Massachusetts Doctrine 15.1 84. The Doctrines Contrasted Discussion 154 85. Reference to Particular Statute Essential 155 86. Lien by Contract 155 87. Lighting Fixtures 156 88. Consent of Owner 157 CHAPTER III. THE LIEN OF THE CONTRACTOR. 89. Classes of Lienors 160 90. Various Statutory Provisions 162 TABLE OF CONTENTS xxi 91. Performance Must Be Proven 162 92. Substantial Performance Sufficient Statement of the Rule 163 93. Effect of Delay 164 94. Limitation of Rule 164 95. Necessity of Architect's Approval 164 96. Municipal Contract Approval by City Department as Condition Precedent 165 97. Collusion Effect 166 98. Waiver of Condition by Owner 166 99. Certificate as Evidence of Performance 166 100. Corporations as Lienors 167 101. Effect of Fire 167 102. Change in Ownership 168 103. Death of Owner 168 104. General Assignment 168 105. Consent of the Owner 168 CHAPTER IV. THE LIEN OF THE SUBCONTRACTOR. 106. Nature of Lien 170 107. The Pennsylvania Doctrine 170 108. The New York Doctrine 170 109. Failure of Contractor to Complete 172 110. Rights of Subcontractor as Affected by Contract 173 111. Employees and Material Men of Subcontractor 174 112. Necessity and Effect of Filing or Recording of Con- tract 175 113. Priority of Claims 177 PART IV. THE ARCHITECT AND THE CONTRACTOR- CONCLUSION. CHAPTER I. THE ARCHITECT AND THE CONTRACTOR. 114. Rights and Liabilities in General 181 115. Right to Plans 182 XXli TABLE OF CONTENTS [Reference, are to Pages.} CHAPTER II. CONCLUSION. i 16. Summary and Final Suggestions 183 Appendix A 191-221 Appendix B 221-256 Appendix C 257-259 Appendix D 260-267 Appendix E 268-270 Forms 271-294 General Index 295-314 Index to Forms 314 TABLE OF CASES A. [References are to Pages.] Ada St. Methodist Episcopal Church v. Garnsey, 66 111. 132. . 42 Adlard v. Muldoon, 45 111. 193 17, 18 Ahern v. Boyce, 19 Mo. App. 552 13, 24 Aimes v. Dyer, 41 Me. 397 150 Aitken v. Wasson, 24 N. Y. 482 150 Allen v. Bowman, 7 Mo. App. 29 46, 47 Andrew Lohr Bottling Co. v. Ferguson, 223; 111. 88, 79 N. E. 35 106 Arnoldi v. Gouin, 22 Grant's Chan. (Ontario) 314 149 Atlantic, etc., Co. v. Donnelly, 59 N. J. L. 48 173 Atlee v. Fink, 75 Mo. 100, 42 Am. Rep. 385 7 Audsley v. The Mayor, 74 Federal 274 46 Ayres v. Revere, 25 N. J. L. 474 176 B. Badger v. Kerber, 61 111. 328 5 Baird v. New York, 96 N. Y. 567 108 Baker v. Publishing Co. (Missouri 1903), 77 S. W. 585 55 Ballon v. Black, 21 Neb. 131 170 Baltimore Cemetery v. Coburn, 7 Maryland 202 18 Bank of Montreal v. Recknagel, 109 N. Y. 482 73 Bank of Penn. v. Gries, 35 Pa. St. 423 149, 150 Bannister v. Patty's Exec's., 35 Wis. 215 28 Barbee v. Findlay, 221 111. 251, 77 N. E. 590 106 Barlow Bros. Co. v. Gaffney, 76 Conn. 107 174 Barry v. Cape, 151 Mass. 99 1 18 Bartlett v. Stanchfield, 148 Mass. 394 124 Baywater v. Richardson, i A. D. & E. 508 50 Beckhart v. Rudolph, 68 N. J. Eq. 740, 68 N. J. Eq. 315 160 Belding v. Gushing, i Gray (Mass.) 576 145 Benner v. Schmidt, 44 111. App. 304 164 Bennett v. Davis, 113 Cal. 337 161 Berger v. Turnblad, 98 Minn. 163 170 Bergfors v. Caron, 190 Mass. 168 163 Birmingham Iron Foundry v. Glen Cove Starch Manfg. Co., 78 N. Y. 30 141, 143 xxiii xxiv TABLE OF CASES [References are to Pages.] Blauvelt v. Woodworth, 31 N. Y. 285 143 Blinn Lumber Co. v. Walker, 129 Cal. 62 175 Bliven v. New England Screw Co. 23 How. 420 50 Bloomington Hotel Co. v. Garthwait, 227 111. 613 164 Boden v. Maher, 105 Wis. 539 28 Bohem v. Seabury, 141 Pa. St. 594 163 Bonagur v. Purificato, 146 N. Y. Supp. 1070 112 Bond v. The Mayor, etc., 19 N. J. Eq. 376 18, 24 Bonestael v. The Mayor, etc., of N. Y., 22 N. Y. 162 24 Bonncy v. Ketcham, 51 111. App. 321 144 Booth v. Pendala, 88 Cal. 36 143 Borup v. Von Kokeritz, 162 N. Y. A. D. 394 103, 105 Bouton v. Supervisors of McDonough County, 84 111. 384. . 23, 24 Bowery National Bank v. The Mayor, 63 N. Y. 336 102 Brainard v. County of Kings, 84 Hun. N. Y. 290, 155 N. Y. 538 125, 172, 174 Brandt v. City of New York, no N. Y. A. D. 396, 186 N. Y. 599 163 Brin v. McGregor (Tex. Civ. App. 1898) 45 S. W. 923 27 Brooks v. Railway Co., 101 U. S. 443 143 Brown v. Decker, 142 Pa. State 640 119 Bryan v. Whitford, 66 111. 33 162 Brydon v. Lutes, 9 Manitoba 463 163 Buckingham v. Flummerfelt, 15 N. Dak. 112 151 Budd v. Lucky, 28 N. J. L. 484 176 Burger v. Koelsch, 77 Hun. (N. Y.) 44 115 Burke v. City of Kansas, 34 Mo. App 570 24 v. Coyne, 188 Mass. 401 163 Bush v. Jones (C. C. A.), 144 Fed. 942 106 Butler v. Flynn, 51 N. Y. A. D. 225 159 Byard v. Holmes, 33 N. J. L. 119 108 C. Cairo, etc., Co. v. Watson, 85 111. 531 174 Campbell v. Day, 90 111. 363 18, 23 Canfield (New England Monument Co.) v. Johnson, et al., 144 Pa. St. 61, 22 Atl. 974 40, 46 Carlisle v. Knapp, 51 N. J. L. 329 174 Carnegie Public Lib. Assoc. v. Harris (Tex. Civ. App. May 9th, 1906) 97 S. W. 520 106 Carney Bros. v. Cook, 80 Iowa 747 146 Cass County v. Gibson, 107 Fed. 363 107 TABLE OF CASES xxv Central Trust Co. v. Richmond, etc., Co. 68 Fed. 90 170 v. Richmond, etc., Co. 54 Fed. 723 174 Champlain Construction Co. v. O'Brien, 117 Federal 271 113 Chapman v. Faith, 18 Pa. Super. Ct. 578 161 Chapman Decorative Co., v. Security, etc., Co., 145 Fed. 434, 149 Fed. 189 126 Chicago, etc., Co. v. Price, 138 U. S. 185 121 Clark v. Fry, 121 N. Y. 470 73 v. Marsiglia, i Denio (N. Y.) 317 58 Clarke v. Roystone, 13 M. & W. 752 50 Cleveland, etc., Railroad Co. v. Moore, 170 Ind. 328 116 Cobb v. Hatfield, 46 N. Y. 533 108 Coburn v. Stephens, 137 Ind. 683 145 Cockerill v. Loonam, 36 Hun. (N. Y.) 353 141 Coddington v. Dry Dock Co., 98 Ala. 409 167 Coen v. Birchard, 124 Iowa 394 128 Coffin v. Reynolds, 37 N. Y. 640 150 Cole v. Clarke, 85 Me. 336 145 Commune de Calombier Saugnieu v. Duchez et Savoye, Dalloz Jurisprudence Generate, 1883, part 3, p. 92 24 Condon v. Donohue, 160 Cal. 749 1 17 Conner v. Lewis, 16 Me. 268 175 Conners v. United States, 130 Federal 609 119 Cook v. Rome Brick Co., 98 Ala. 409 167 Coombs v. Beede, 89 Me. 187, 36 Atlantic 104 3, 17, 44, 67, 75 Cooper v. Langdon, 9 M. & W. (Messon & Welsby) 60. . . .18, 24 Coorsen v. Ziehl, 103 Wis. 381 145 Cornell v. Barney, 94 N. Y. 394 145 Costello v. Dale, i Hun. (N. Y.) 489 145 Courtney v. Provincial Commission, 41 Nova Scotia 71.... 119 Cox v. Broderick, 4 E. D. Smith (N. Y.) 721 144 Crane Co. v. Hanley, etc., Co., 53 Mo. App. 540 170 Crockett v. Chattanhoochen Brick Co. 95 Ga. 540 17 Crystal v. Flannelly, 2 E. D. Smith (N. Y.) 583 144, 168 Culver v. Attwood, 170 111. 432 174 Cummings v. Consolidated, etc., Water Co., 61 Atlantic 353. . . 140 Curnew v. Lee, 143 Mass. 105 162 D. Daly v. Wise, 132 N. Y. 306 108 Danforth v. Tennessee, etc., Co., 93 Alabama 614 124 Dauchey v. Drake, 85 N. Y. 407 73 Davis v. Alvord, 94 U. S. 545 143 xxvi TABLE OF CASES [References are to Pages.] David v. McDonald, 8 L. C. (Lower Canada) Jurist 44, 14 L. C. Rep. 31 78, 107 Day & Co. v. Pickens County, 53 South Carolina, 46 9, 18 Delafield v. Sayre, 31 Vroom (N. J.) 449 144 DeLeon v. White, 9 Texas 598 4 Delray, etc., Co. v. Keohone, 132 Mich. 17 173 Derr v. Kearney, 46 Misc. (N. Y.) 148 163 Dersheimer v. Maloney, 143 Pa. St. 532 174 Diehl v. Schmalacker, 26 Misc. (N. Y.) 835 102 Dillon v. City of Syracuse, 5 Silv. Supreme Court (N. Y.) 575, 9 N. Y. Supp. 98, 29 N. Y. St Rep. 912 17 Disken v. Herger, 73 N. Y. A. D. 453 115 Dodge v. McDonnell, 14 Wis. 553 17, 18 Dogue v. Levy, 114 La. 21, 37 So. 995 106 Drew v. Mason, 81 111. 498 162 Dreyer v. McCormack Real Estate Co., 164 App. Div. (N. Y.) 41 125 Driscoll v. Independent School District, 61 Iowa 426 40 Drumheller v. American Surety Co., 30 Wash. 530 130 Duff v. Hoffmann, 63 Pa. St. 192 161, 174 Dufresne v. Prefontaine, 21 Can. Sup. Ct. 607 143 Dull v. Bramhall, 49 111. 364 60 Duplan Silk Co. v. Spencer, 115 Federal 689 124 Durkin v. City of New York, 49 Misc. (N. Y.) 114 114 Durling v. Gould, 83 Me. 134 141 E. Eastern, etc., Metal Co. v. Webb Granite, etc., Co., 195 Mass. 356 115 Elliott v. Missouri, etc., Co., 74 Federal 707 121 Elliston v. Jackson Water Co., 12 Cal. 542 141 Embury v. 42nd St. & Madison Avenue Co., et al., N. Y. L. J. April i6th, 1915 150, 156 Emerson v. Kneezel, 62 S. W. (Tex. Civ. App. Dec. 1900) 551 42 English v. Warren, 65 N. J. Eq. 30 176, 177 Entenman v. Anderson, 106 N. Y. A. D. 149 145 Ericsson v. Browne, 38 Barb. (N. Y.) 390 149 Erskine v. Johnson, 23 Neb. 265 69 Ex parte Schmidt, 62 Ala. 252 141 F. \Fagan v. Boyle, etc., Co., 65 Texas 324 167 Farmer v. St. Croix, etc., Co., 117 Wis. 76 174 TABLE OF CASES xxvii Farrell v. Levy, 139 (N. Y.) A. D. 790 119, 120 Favor v. Philbrick, 7 New Hampshire 326 118 Fay v. Muhlker, i Misc. (N. Y.) 321 102 Felgenhauer v. Haas, 123 A. D. (N. Y.) 75 163 Feltham v. Sharp, 99 Ga. 260, 25 S. E. 619 42 Feltus v. Swan, 62 Miss. 415 69 Field v. Lelean, 30 L. J. Ex. 168 50 v. Consolidated Water Co., 25 R. I. 319 149 Filston Farm Co. v. Henderson (Md. Ct. of App. June 27, 1907) 67 Atl. 228 106 Fireproof Building Co. v. First National Bank, 54 Super. Court (N. Y.) 511 17, 23 First Natl. Bank, etc. v. Trigg Co., 106 Va. 327 143 Fitzgerald v. Benner, 219 111. 485, 76 N. E. 709 106 v. Moran et al., 141 N. Y. 419 17, 22 Fitzhugh v. Mason, 2 Cal. App. 220, 83 Pac. 282 6 Flaherty v. Miner, 123 N. Y. 382 102 Flanikin v. Pokes, 15 Texas 180 4 Foley v. Algar, 4 E. D. Smith (N. Y.) 719, 134 145 Fontano v. Robbins, 22 App. Cas. (D. C.) 253 18 Foshay v. Robinson, 16 N. Y. Supp. 817, 137 N. Y. 134. ..171, 172 Fox v. Rogers, 171 Mass. 546 1 18 v. Powers, 65 (N. Y.) A. D. 112 123 v. Rucker, 30 Ga. 525 144 Francis v. Heine, etc., Co., 105 Federal 413, 109 Federal 838. . 115 Freedman v. Sandknop, 53 N. J. Eq. 243 176 Freeman v. Gilpin, i Phila. 23 142 v. Rinaker, 185 111. 172 149 Frohlich v. Klein, 160 Mich. 142 163 Frost v. Ilsley, 54 Me. 345 143 Friedland v. McNeil, 33 Mich. 40 9 Friedlander v. Taintor, 14 N. D. (104 N. W. 527) 393 149 G. Gardner, etc., Co. v. N. Y. Central, etc., Co., 72 N. J. L. 257. . 174 Garrison v. Borio, 61 N. J. Eq. 236, 47 Atl. 1060 144, 174 Gaskell v. Beard, 58 Hun. (N. Y.) 101 167 General Supply Co. v. Hunn, 126 Ga. 615 145 Gibson County v. Matherwell Iron, etc., Co., 123 Ind. 364. ... 32 Gilman v. Stevens, 54 How. Pr. (N. Y. Super. Ct.) 197 8,60,61,75,79, 86 Girard Life Insurance Co. v. Cooper, 162 U. S. 529 115 Glacius v. Black, 50 N. Y. 145 17, 24, 164 v. Black, 67 N. Y. 563 143 XXViii TABLE OF CASES [References are to Pages.} Glading v. Frick, 88 Pa. St. 460 176 Glaholm v. Hays, 2 M. & G. 265 73 Gordon v. Torrey, 15 N. J. Eq. 112 168 Graham v. The Commissioner of Works, Builder, Nov. 15, 1902, p. 456 30 Gray v. La Societe Francaise, etc., 131 California 566 18 Green v. Williams, 92 Tenn 220 170 v. Brooks, 81 Cal. 328, 22 Pac. Rep. 849 4 Grave v. Ganer, 36 Wisconsin 369 1 14 Gurney v. Atlantic, etc., Co., 58 N. Y. 358 149 H. Haines v. Holland (1898 Tenn. Ch. App.) 48 S. W. 400 162 Hall v. Wright, 06 E. C. L. 746 89 Halsey v. Waukesha Springs Sanitarium Co., 125 Wis. 311, 104 N. W. 94 107 Hammond v. Darlington, 84 S. W. (Missouri, 1904) 446 140 Handy v. Bliss, 204 Mass. 513 1 19 Harbeck v. Southwell, 18 Wis. 418 174 Harlan v. Rand, 27 Pa. St. 511 174 Harmer v. Cornelius, 5 C. B. (N. S.) 236 67 Hart v. Globe Iron Works, 37 Ohio St. 75 168 Hartley v. Murtha, 5 N. Y. A. D. 408 166 Hatch v. Fansher, 16 R. I. 459 170 Havens v. Donahue, 43 Pac. Rep. (Oal. Supreme Court 1896) 962 4 Hayne v. Gray, 125 Cal. 372 10 Hayes v. Wagner, 113 Illinois Appeals 299 116 Hazard, etc., Co. v. Loomis, 2 Disney (Ohio) 544 146 Heamann v. Porter, 35 Mo. 137 141 Hedden Const. Co. v. Proctor, etc., Co., 62 Misc (N. Y.) 129. . 178 v. Rossiter, etc., Co. 136 N. Y. A, D. 601 124 Heidlinger v. Onward Const. Co., 44 Misc. (N. Y.) 555, 90 N. Y. Supp. (124 N. Y. St. Rep.) 115 106 Hemming v. Hale et al., 7 C. B. N. S. (Common Bench, New Series) 487 29 Henry, etc., Co. v. Halter, 58 Neb. 685 149 Hebert v. Dewey, 191 Mass. 403, 77 N. E. 822 106 Herell v. Donovan, 7 App. Cases (D. C.) 322 145 Herman et. al., v. City of New York, 130 N. Y. A. D. 531. . . 178 Heroy v. Hendricks, 4 E. D. Smith (N. Y.) 768 174 Herrick v. Estate of Sewall Belknap et al., 27 Vt. 673 13 Hickey v. Schwab, 64 How. Pr. (N. Y.) 8 141 TABLE OF CASES xxix Highton v. Dessau, 139 N. Y. 607, 19 N. Y. Sup. 395 164 Hill v. Blake, 97 N. Y. 216 73 Hinckley v. Fields, etc., Co., 91 Cal. 136 161 Hoff's Appeal, 102 Pa. St. 218 168 Holbrook v. Ives, 44 Ohio St. 516 168 Holding v. Pigott, 7 Bing. 465, 474 50 Holl v. Long, 34 Misc. (N. Y.) 1 164 Homersham v. Wolverhampton Water-works Co., 6 Exch. 137 13 Horgan v. New York, 114 N. Y. A. D. 555 42 Horn, etc., Co. v. Steelman, 215 Pa. St. 187 145 Howard v. Pensacola, etc., Co., 24 Florida 560 115, 116 Hubert v. Aitken, 2 N. Y. Supp. 711, 5 N. Y. Supp. 839, 15 Daly (N. Y.) 237, 123 N. Y. 655 76, 81, 82, 86, 149 Hunter v. Truckee Lodge, etc., 14 Nev. 24 171 Hutchinson v. Tatham, Law Rep. 8 C. P. 482 50 Huttig Bros., etc. Co. v. Denny Hotel Co., 6 Wash. 122 167, 170, 173 I. laege v. Bossieux, 15 Grat (Va.) 83 175 Irving v. Morrison, 27 C. P. (Upper Canada) 242 88 Isaacs v. Dawson, 70 A. D. (N. Y.) 232, 174 N. Y. 537 120 J. Jackson Architectural Iron Works v. Rouss, 39 St. Rep. 359, 15 N. Y. Supp. 137, 133 N. Y. 538 27 Jenkins v. Betham, 15 C. B. 189 67 Johnson v. McClure, 10 N. M. 506 149 v. O'Neill et al., 148 N. W. (Mich. 1914) 364 55 v. Wanamaker, 17 Pa. Sup. Ct. 301 75 Jones v. Brown, 54 Iowa 74 87 v. Reg., 7 Can. Sup. Ct. 570 18 Joplin Supply Co. v. West, 149 Mo. App. 78 143 K. Kane v. Stone Co., 39 Ohio St. 1 163 Kelly v. Bloomingdale, 19 N. Y. Supp. 126, 139 N. Y. 343 172 v. Fejervary, 78 Northwestern 828 126 Kenny v. Gage, 33 Vt. 302 140 Kerwin v. Post, 120 N. Y. A. D. 179 157 Kilgore v. Northwest Texas Baptist Educational Society, 89 Tex. 465 27 Kimberly v. Dick, L. R. 13 Eq. 1 17 XXX TABLE OF CASES [References are to Pages.} Kirk v. Guardians, etc., 2 Phila. 640, i Redfield Am. R, R. Cases, 305 16 Kirschner v. Mahoney, 96 N. Y. Supp. 195 171 Knapp v. Brown, 45 N. Y. 207 145 Knelly v. Horwath, 208 Pa. St. 487, 57 Atlantic 957 144 Knight v. Norris, 13 Minn. 473 60, 149 Knowlton v. Ellis, 12 Phil. (Pa.) 396 170 Kutts v. Pelby, 20 Pick. (Mass.) 65 40, 45 L. La Foucherie v. Knutzen, 58 N. J. L. 234 176 LaGrill v. Mallard, 90 Cal. 373 161, 162 Laird v. Moonan, 32 Minn. 358 143 Lake v. McElfatrick, 139 N. Y. 349, 46 N. Y. St. Rep. 437, 19 N. Y. Supp. 494 74 Lambert v. Sanford, 55 Conn. 437 59 Langley v. Rouss, 185 N. Y. 201 124 v. Rouss, 85 (N. Y.) A. D. 27 17 La Pasta v. Weil, 20 Misc. (N. Y.) 554, 20 Misc. (N. Y.) 10. . 171 Larrimore v. Comanche County (Tex. Civ. Apps. Sep. 1895) 32 S. W. 367 70 Lavanway v. Cannon, 37 Wash. 593, 79 Pac. 1117 107 Lee v. Lord Bateman. Times, October 31, 1893 30 Legg v. Dunleavy, 80 Mo. 558, 50 Am. Rep. 512 7 Lester v. Houston, 101 North Carolina, 605 161-162 Leverone v. Arancio, 179 Mass. 439 17 Lewis v. Slack, 27 Mo. App. 119 5, 18, 25 L'Hommedieu v. Winthrop, 59 A. D. (N. Y.) 192 165 Libbey et al. v. Tidden et al., 192 Mass. 175 150, 154 Linden Steel Co. v. Rough Run Manufacturing Co., 158 Pa. St. 238 170 Lippincott v. Yorke, 86 Tex. 276 156 Loftus v. Jorjorian, 194 Mass. 165, 80 N. E. 235 106 Lonford v. Diettrich, 87 Ala. 250 no Loomis v. Knox, 60 Conn. 343 140 Lord v. Thomas, 64 N. Y. 107 58 Lottman v. Barnett, 62 Missouri 159 69, 75, 85 Louden v. Coleman, 59 Ga. 653 167 Louisville Foundry Co. v. Patterson (Ky. Ct. of App. May 9th, 1906) 93 S. W. 22 106 Louisiana Molasses Co. v. Le Sassier et al., 52 La. Ann. 2070 9 Ludbrook v. Barrett, 46 L. J. C. P. 798. 181 Lunsford v. Dietrich, 86 Ala. 250 182 TABLE OF CASES xxxi Lyle v. Jackson Co., 23 Arkansas 63 115 M. Maak v. Schneider, 57 Mo. App. 431 42 Maas v. Hernandez, 48 La. Ann. 264, 19 So. 269 40 Macomber v. Bigelow, 126 Cal. 9 174 Macondray v. Simmons, i Cal. 393 142 Mahon v. Guilf oyle, 18 N. Y. Supp. 93 163 Mahoney v. Oxford Realty Co., 133 A. D. (N. Y.) 656 124 Majory v. Shubert, 82 (N. Y.) A. D. 633 114 Malbon v. Birney, n iWis. 107 163 Maldard et al. v. Moody et al., 105 Ga. 400 18 Machester v. Searle, 121 Mass. 418 146 Marcotte v. Beaupre, 15 Minn. 152 40, 54 Marquis v. Lauretson, ( Iowa Sup. Ct. 1888) , 40 N. W. 73 44 Marshall v. Cohen, n Misc. (N. Y.) 397 145 Martin v. Oberle, 85 N. Y. Misc. 35 in Martine v. Nelson, 51 111. 422 142 Marx v. White Co., 143 N. Y. Supp. 1036 100 May v. Menton, 18 Misc. (N. Y.) 737 163 Mayes v. Reg., 23 Canadian Sup. Ct. 454, 2 Exch. 403 18 Mayor v. Cunliff, 2 N. Y. 165 68 McClallan v. Smith, n Cush. (Mass.) 238 175 McCullough v. Moore, in Illinois Appeals 545 128 McDonald v. Patterson & Co., 186 111. 381, 84 111. Apps. 326. . 166 Mclntosh v. Hastings, 156 Mass. 344 18 McKeon v. Sumner Building, etc., Co., 51 La. Ann. 1961 143 McKnight, etc., Co. v. The Mayor, 160 N. Y. 72 102 McManus v. Rothschild, 25 Ontario L. R, 138 128 McMahon v. N. Y. Co., 20 N. Y. 463 121 McNulty v. Offerman, 164 N. Y. A. D. 949 158 McPherson v. Rockwell, 37 Wis. 159 28 Merchants Insurance Co. v. Mazange, 22 Ala. 168 140 Merrigan v. English, 9 Mon. 1 13 170, 171 Merrill-Ruckgaber Co. v. New York, 160 N. Y. A. D. 513 103 Merriman v. Fowler, 37 N. J. L. 89 75 Meyers v. Daly, 7 Daly (N. Y.) 471 145 Mills v. Paul, 30 Southwestern 558 126, 127 v. Weeks, 21 111. 561 24 Mitchell v. Dougherty, 86 Federal 859 121 v. Kavanagh, 38 Iowa 286 121 v. Packard, 168 Mass. 467 153 Modern Steel Structure Co. v. English Const. Co., 129 Wis. 31, 108 N. W. 70 107 xxxii TABLE OF CASES [References are to Pages.] Moffatt v. Scott, 8 L. C. Jur. 310 90 Mohawk, etc., Co. v. Brown et. al., 163 N. Y. A. D. 157 107, 108, 109 Moneypenny v. Hartland, i C. & P. (Carrington & Payne) 352, 2 C & P. 378 42, 53, 86 Montandon v. Deas, 14 Ala. 33 146 Moon v. Guardians of the Poor, 3 Bingham's N. Cas., 814 31 Moore v. Dugan, 179 Mass. 153 163 Mornan v. Carroll, 35 Iowa 22 146 Morrison v. Universal, etc., Co., L. R. 8 Exch. Cases 197 108 v. Whaley, 16 R. I. 715 174 Morrison Co. v. Williams, 200 Mass. 406 163 Morse v. Maurer, 35 Pa. Super. Ct. 196 115 Mosher v. Lewis, 10 N. Y. Misc. 373 155 Muldoon v. Pitt, 54 N. Y. 269 145, 146 Mulligan v. Mulligan, 18 La. Ann. 21 60, 149 Mutual Benefit, etc. Co. v. Rowand, 26 N. J. Eq. 389, 12 C. E. Green (N. J.) 604 149 N. National Contracting Co. v. Hudson, etc. Power Co., 67 A. D. (N. Y.) 620, 170 N. Y. 439 131 National Wall- Paper Co. v. Sire, 163 N. Y. 122 158 Nellis v. Bellinger, 6 Hun. N. Y. 560 159 Nelson v. Spooner, 2 F. & F. 613 40, 42 Nesbit v. Braker, 104 N. Y. A. D. 393 163, 164, 165 Newman v. Fowler, 37 N. J. L. 89 77, 107 Newark Lime, etc., Co. v. Morrison, 13 N. J. Eq. 133 143 N. J. Steele, etc., Co. v. Robinson, 33 Misc. (N. Y.) 361 171 N. Y. & N. H. Automatic Sprinkler Co. v. Andrews, 173 N. Y. 25 165 N. Y. Building Co. v. Springfield, etc., Co., 56 A. D. (N. Y.) 294 119, 120 N. Y., etc., Terra Cotta Co. v. Williams, 102 N. Y. A. D. i . . 167 N. Y. State, etc., Bank v. Whitehall Water, etc., Co., 161 N. Y. A. D. 304 101 Niver v. Nash, 35 Pac. Rep. (Wash. Sup. Ct. Dec. 1893) 380 69 Nolte v. His Creditors, 6 Mart. (N, S.) La. 168 175 Norrington v. Wright, 115 U. S. 188 73 Norris v. Day, 10 L. J. N. S. Exch. in Eq. 43 7 Noyes v. Burton, 29 Barb. N. Y. 631 168 O. Oberlies v. Bullinger, 75 Hun. (N. Y.) 248 122 TABLE OF CASES xxxiii O'Brien v. Reg., 4 Can. Supreme Court 529 119 O'Keefe v. St. Francis' Church, 59 Conn. 551 113, 123, 124 Oldershaw v. Garner, 38 V. C. Q. B. 37 121 Olsen v. Schwarzwelder, 109 N. Y. A. D. 282, 95 N. Y. Supp. 651 106 Orlandi et al. v. Gray et al., 125 Cal. 372 10 Otis v. Dodd, 90 N. Y. 336 158 Otis Elevator Co. v. Dusenbury, 47 Misc. (N. Y.) 450 164 P. Pacific Mutual, etc., Co. v. Fisher, 106 Cal. 224 161 Paladino Contracting Co. v. Walsh et al., 144 N. Y. Supp. 7. . 112 Palmer v. DeWitt, 47 N. Y. 532 91 Pappa v. Rose, L. R. 7 C. P. 32, 525, i Eng. Rep. 87, 2 Eng. Rep. 375 87 Parker v. Anthony, 4 Gray (Mass.) 289 146 Pashby v. Mayor, etc. of Birmingham, 86 E. C. L. 2 121 Pell v. Baur, 133 N. Y. 377 158 Pendleburg v. Meade, i E. D. Smith N. Y. 728 170 Pennock v. Hooper, 5 Rawle (Pa.) 290 168 People v. Campbell, 82 N. Y. 247 4 People ex rel. Rapid Transit, etc. Co. v. Craven, 210 N. Y. 443 102, 105 Pere Marquette R. Co. v. Baertz, 36 Ind. Apps. 408 174 Perry v. Levenson, 82 N. Y. A. D. 94, 178 N. Y. 559 27 v. Potashinski, 169 Mass. 351 145, 168, 170, 173 Person v. Stoll, 72 N. Y. A. D. 141, 174 N. Y. 548 173 Petersen v. Rawson, 34 N. Y. 370, 2 Boswell, N. Y. 234 76,77, 84 Phoenix Furniture, etc., Co. v. Put-In Bay Hotel Co., 66 Fed. 683 149 Pierce v. Thurston, 40 App. Div. (N. Y.) 577 40, 5.6 Pleasant College v. Colett, 142 Kentucky 342 122 Poitras v. Deslauriers, 4 Rev. Leg. 375 10 Powell v. Nolan, 27 Washington 318 162 Pratt v. Tudor, 14 Tex. 37 140 Prince v. Neal Millard Co., 124 Ga. 892 143, 171 Pritzlaff, etc. Co. v. Berghoefer, 103 Wis. 359 163 R. Raeder v. Pensberg, 6 Mo. App. 445 149 Rafter v. Sullivan, 13 Abbts. Pr. (N. Y.) 262 141 Randell et al. v. Trimen, 18 C. B. (Common Bench) 786 33 xxxiv TABLE OF CASES [References are to Pages.] Reg. v. Stars et al., Can. Sup. Ct. 118 18 Renton v. Monniere, 77 Cal. 449 25 Resher v. Freres des Ecoles Chretiennes, 34 L. C. Jur. 89 45 Rex. v. Peto, i Young & Jarvis 37 18 Richard v. Clark, 43 Misc. (N. Y.) 622 17, 27 Richardson v. Hickman, 32 Ark. 406 168 Rinn v. Electrical Power Co., 3 N. Y. A. D. 305 148, 150, 151 Ripley v. U. S., 223 U. S. 695 1 19, 120 Robinson v. Springfield Iron Co., 39 Hun (N. Y.) 634 31 v. U. S., 13 Wall 363 50 Rochford v. Rochford, 192 Mass. 231 163 Robins v. Goddard ( 1905) i K. B. 294 107 v. Bunn, 34 N. J. L. 322 168 Roebling's Sons' Co. v. Humboldt, etc., Co., 112 Cal. 288. ... 161 Rowley v. Bigelow, 12 Pick. (Mass.) 307 108 v. James, 31 111. 298 146 Ruigle v. Wallis Iron Works, 149 N. Y. 439 163 Rush v. Able, 90 Pa. St. 153 145 S. Salem v. Lane, etc., Co. 189 111. 593 161 Savannah, etc., R. Co. v. Grant, 56 Ga. 68 141 Sawyer v. Schick, 30 Okla. 353 140 Schenck v. Uber, 81 Pa. St. 31 161 Schillinger Fireproof Cement, etc., Co. v. Arnott, 86 Hun. N. Y. 182, 152 N. Y. 584 143 Schliess v. Grand Rapids, 131 Michigan 52 121, 122 Schmulbach v. Caldwell et al., 215 Fed. Rep. 70 102 Schreiner v. Miller 67 Iowa 91 69, 74 Schroeder v. Galland, 134 Pa. St. 277 170, 174 Scott v. Christ's Church Cathedral, i L. C. L. J. 63 77 v. Maier, 56 Mich, 554 59 Seaman v. Biemann, 108 Wis. 365 170, 174 Sharpe v. San Paulo, etc. Co. 27 L. T. Rep. N. S. 699, L. R. 8 Ch. App. 605 (Notes) L. R. 8 Ch. App. 597 18 Shaw v. Andrews, 9 Cal. 73 10 v. Young, 87 Me. 271 142 Sherry v. Madler, 123 Wis. 621 163 Shipman v. State, 43 Wis. 381 69, 79 Shurman v. George Backer, etc., 144 N. Y. Supp. 9 102 Simpson v. Dalrymple, n Cushing (Mass.) 308 145 Sinclair v. Tallmadge, 35 Barb. (N. Y.) 602 163 Slack v. Collins, 145 Ind. 569 141 TABLE OF CASES xxxv Small v. Burke, 92 A. D. (N. Y.) 338 127 Smith v. Bradbury, 148 Cal. 41 175 Smith v. Bruyere, 152 S. W. (Tex. 1913) 813 55 v. Coe, 2 Hilt (N. Y.) 365, 29 N. Y. 666 163 v. Dickey, 74 Tex. 61, 1 1 S. W. 1049 40, 42 v. Luning, in Cal. 308 117 v. Molleson, 148 N. Y. 241 28 v. Neubaur, 144 Ind. 95 174 v. Ruggiero, 52 A. D. (N. Y.) 382 163 Smith et al. v. Farmers Trust Co., 97 Iowa 117 18 Smithmeyer v. U. S., 25 Ct. Cl. 481, 147 U. S. 342 40, 61 Snyder v. N. Y. Central, etc., 72 N. J. L. 262 174 Sontag v. Brennan, 75 111. 279 168 Spannhake v. Mountain Construction Co. et al., 159 A. D. (N. Y.) 727 ISO Spurgeon v. MacElwain, 6 Ohio 442 115 Starkweather v. Goodman, 48 Conn. 101 17, 18, 20, 24 Steger v. Arctic Refrigerating Co., 89 Tenn. 453 168 Stephens v. Essex County Park Commission (C. C. A.) 143 Fed. 844 106 v. United R. R., etc., Co. 29 Ohio St. 227 174 Stewart v. Boehme, 53 111. App. Court 463 76 Stowell v. Simmons, i Cal. 45.2 142 Straus v. Buchman et al., 96 N. Y. App. Div. 270 75, 78, 86 Stryker v. Cassidy, 76 N. Y. 50, 10 Hun. (N. Y.) 18. .148, 149, 150 Stuart v. City of Cambridge, 125 Mass. 102 18, 21, 24, 32 Stubbs v. Hollywell R. Co., L. R. 2 Exch. 311 89, 90 Sundstrom v. The State, 213 N. Y. 68, 158 N. Y. A. D. 241. . . 100 Swasey v. Granite, etc. Co., 158 N. Y. A. D. 549 150 Sweet v. James, 2 R. L 270 141, 142 v. Morrison, 116 N. Y. 19 119, 132 T. Tahrland v. Rodier, 16 L. O. Rep. 473 7 Tayloe v. Sandiford, 7 Wheat (U. S.) 13 128 Taylor v. Gilsdorff, 74 111. 354 149 Tennis Bros. Co. v. Wetzel, etc., R. Co., 140 Fed. 193 142 Tenth National Bank of Philadelphia v. Smith Construction Co., 218 Pa. St. 581, 67 Atlantic 872 144 Thayer v. Vermont Central Railroad Co., 24 Vt. 440 13 The Fireproof Building Co. v. The First National Bank, et al., 54 N. Y. Super. Court 511 23 The National Contracting Co. v. Hudson River Water Power Co., 192 N. Y. 209 26 xxxvi TABLE OF CASES [References are to Pages.] The President, etc., of the Delaware & Hudson Canal Co. et al., v. Penn Coal Co., 50 N. Y. 250 132 Thomas v. Fleury, 26 N. Y. 26 102 v. Stewart, 132 N. Y. 580 102 Thomsbn-Starrett Co. v. Brooklyn Hts. Realty Co., in N. Y. A. D. 358 148, 164 Throckmorton v. Shelton, 68 Conn. 413 140 Tilly v. County of Cooke, 103 U. S. 155 48 Tobias v. Liesberger, 105 N. Y. 404 73 Tommasi v. Archibald, 114 N. Y. A. D. 838 140 Tompkins Co. v. Monticello, etc., Co., 137 Fed. 625 163, 164 Traitel v. Oussani, 51 Misc. (N. Y.) 667, 135 N. Y. St. Rep. (101 N. Y. Supp.) 105 106 Traitel Marble Co. v. Brown Bros. Inc., 159 N. Y. A. D. 485. . 101 Tri-Borough, etc., Co. v. Wechsler Realty Co., 163 N. Y. A. D. 901 125 Trueman v. Loder, 1 1 A. and E. 589 50 Trust Co. v. Guigues, 76 N. J. Eq. 495 163 Tubridy v. Wright, 144 N. Y. 519, 7 Misc. N. Y. 403 168 Turnes v. Brenckle, 249 111. 394 141 Turney v. Bridgeport, 55 Conn. 412 115 U. United States v. Buchanan, 8 How. 83 51 v. Ellicott, 223 U. S. 524 1 15 United States Blowpipe Go. v. Spencer, 40 W. Va. 698 143 Updike v. Skillman, 27 N. J. L. 131 155 Uvalde, etc., Paving Co. v. Central, etc., Co., 84 N. J. L. 297. . 102 V. Vail v. Meyer, 71 Ind. 159 146 Vandenberg v. P. T. Walton, etc., Co., 19 Okla. 169 174 Vanderhoof v. Shell, 42 Oregon 578 27 Vanderwerker et al. v. Vermont Central Railroad Co., 27 Vt. 125 ; Id. 130 13 Van Stone v. Stillwell, etc., Manfg. Co., 142 U. S. 128. 140, 141, 143 Vaughan v. Ford, 162 Mich. 37 170 Vigeant v. Scully, 20 111. App. Court 437 76, 86, 88 Vogel v. Luitwieler, 52 Hun. (N. Y.) 184 174 Von Dorn v. Mengedoht, 41 Neb. 5.25 149 W. Wharton et al. v. Real Estate Inv. Co. et al., 180 Pa. St. 168 36 Atlantic 725 144 TABLE OF CASES xxxvii White v. Abbott, 188 Mass. 99, 74 N. E. 305 106, 122 v. Miller, 18 Pa. St. 52 H3, 170 v. San Rafael and San Quentin R. R. Co., 50 Cal. 417. .16, 124 Whitla v. Taylor, 6 La. Ann. 480 175 Whittier v. Wilbur, 48 Cal. 175 143 Wigton's Appeal, 28 Pa. St. 161 168 Wilcox v. Stephenson, 30 Fla. 377 121 Wilcox Manufacturing Co. v. Brazos, 74 Conn. 208 117 Wilemet Steam, etc., Co. v. Los Angeles College Co., 94 Cal. 239 1 16 Willets v. Earl, 53 N. J. L. 270 176 Willey v. Tapping, 146 Pa. St. 427 170 Wills et al. v. Abbey et al., 27 Texas 202 4 Winder v. Caldwell, 14 How. U. S. 434 162 Windrim v. Philadelphia, 9 Philadelphia, Pa. 550 90 Withdrew L. Co. v. Glasgow, etc., Co., 101 Fed. 863 141, 143 Wolf v. Pa. R. Co., 29 Pa. Superior Court 439 143 Wollreich v. Fettretch, 4 N. Y. Supp. 326 164 Womble v. Hickson, 91 Arkansas 266 116 Wood v. Donaldson, 17 Wend. (N. Y.) 550, 22 Wend. 395 174 Woodruff v. Rochester & Pittsburgh R. R. Co., 108 N. Y. 39 13, 14, 17, 24 Wagner Co. v. Cawker, 1 12 Wis. 532 18, 24, 28 Wahle, etc., Co. v. 59th St. & Madison Ave. Co., 153 N. Y. A. D. 17 156 Wahlstrom v. Trulson, 165 Mass. 429 173 Walbank v. Protestant Hospital, 7 Montreal Q. B. 166 46 Walsh v. St. Louis Exposition, etc., Assn., 16 Mo. App. 502, 90 Mo. 459 53 v. St. Louis, etc., Assn, 101 Mo. 534 42 Wambald et al. v. Gehring, 109 Wis. 122 28 Wandelt v. Cohen, 15 Misc. (N. Y.) 90 45 Wandenberg v. P. T. Walton, etc., Co., 19 Okla. 169 174 Ward v. Hudson River, etc., Co., 125 N. Y. 230 127, 128, 129 v. Yarnelle, 173 Ind. 535 141 Watts v. Metcalf, 23 Ky. L. Rep. 2189, 66 S. W. Rep. 824 18 Waugh v. Morris, L. R., 8 Q. B. 202 118 Weatherhogg v. Board of Commissioners of Jasper County, 158 Ind. 14 28 Weaver v. Atl., etc. Co., 57 N. J. Eq. 547 176, 177 Webster City, etc., Co., v. Chamberlin, 137 Iowa 717 145 Weeks v. O'Brien, 141 N. Y. 199 102, 165 v. The Rector, etc., of Trinity Church, 56 (N. Y.) A. D. 195 17 xxxviii TABLE OF CASES [References are to Pages.] Weggner v. Greenstine, 1 14 Mich. 310 13 Wendt v. Martin, 89 111. 139 145 Woolf v. Schaefer, 103 N. Y. A. D. 567, 41 Misc. N. Y. 640 162-163 Wright v. Eisle, 86 N. Y. A. D. 356 90, 91 v. Meyer (Tex Civ. App. 1894) 25 S. W. Rep 1122 28 v. Pohls, 83 Wis. 560 171 Wyman v. Hooker, 2 Cal. App. 36, 83 Pac. 79 106 Wymard v. Deeds, 21 Pa. Super. Ct. 332 28 Y. Yeats v. Pirn, Holt N. P. 95 50 PART I THE ARCHITECT AND THE OWNER CHAPTER I THE RELATIONSHIP IN GENERAL i. Similar to Other Professional Relation- ships. The relationship existing between the architect and the owner, his client, is, to a marked degree, similar and in many respects substantially identical with the relationship existing between an attorney and his client and a physician and his patient. 1 In each case the professional man is in a position of trust and confidence. In each he is the recognized agent of his client. In each he is assumed to possess, by virtue of the very nature of his calling, a special degree of skill and ability therein; and in each, though as to this infinitely more in the case of the attorney or physician than in the case of the architect, he is under certain obligations to the public and to the State. 2. Exceptions to Rule. Unlike the attorney, the architect, if under examination in court, may not, it seems, successfully plead privilege as to communications between him and his employer 2 nor yet, it has been held, does he render himself liable in damages by making disclosures of his employer's intention to build or the location of the proposed building, 3 provided of course that he 1 Coombs v. Beede, 89 Me. 2 Wait, Eng. & Arch. Juris., 187. 772. 3 4 LAW OF ARCHITECTURE AND BUILDING has neither agreed to keep silent as to these mat- ters nor been requested by his employer to treat them as confidential. The rule allowing the ar- chitect to make disclosures of this character, with- out the incurring of liability, is not, however, sufficiently well established to be considered a safe one to act upon, entirely aside from the ethical questions involved ; and a case 4 which has been cited 5 in support of the rule allowing disclosure by an architect or engineer of the building site selected by the employer does not seem to warrant its citation in this connection, for the reason that the decision is specifically stated to be applicable to situations where no relations of trust or public confidence exist. So far, certainly, as public officers are concerned, such disclosures have not been viewed with favor. 6 Irrespective of whether his services be gratu- itous or not, 7 the rule holds good that the archi- tect must, subject only to the certain possible ex- ceptions, such as the exception relating to privi- leged communications just noted, and necessarily occasioned by the peculiar attributes and customs of each profession, preserve toward his client in all their dealings, the same general attitude as that which characterizes the relationships of physician and patient, and attorney and client. 8 Havens v. Donahue, 43 * Wills et al. v. Abbey et 'Pac, Rep. (Cal. Supreme al., 27 Texas 202; and see Court 1896) 962. Flanikin v. Pokes, 15 Texas 4 Green v. Brooks, 81 Cal. 180; DeLeon v. White, 9 328, 22 Pac. Rep. 849. Texas 598. 8 Wait, Eng. & Arch. Juris., 7 People v. Campbell, 82 p. 772. N. Y. 247. THE RELATIONSHIP IN GENERAL 5 3. Absolute Good Faith Required. It is fun- damental that the architect must act for his client in absolute and entire good faith throughout, and in all ways consistently with the trust and confi- dence which the client has reposed in him. 8 With the contractor, the relationship of the ar- chitect, as will be seen, is different, but here too he is under the necessity of acting in perfect sin- cerity and good faith, although under none of those special obligations which flow from his re- lation to his client and from the direct contract between them. To the public also, as in the proper supervision of the construction of public or office or tenement or apartment buildings to be occupied or used by the public, he is under obliga- tions to use all reasonable care and diligence, al- though, publicly, his obligations and duties are naturally less than those of a physician on whom the public health may depend or of an attorney, who is an officer of the court before which he practices. The public obligations of the architect are, however, being recognized more generally of late in the United States as is evidenced by deci- sions recognizing his accountability to third par- ties, under circumstances which will be noted, and by legislation in various States regulating the re- quirements for admission of architects to practice and requiring the obtaining of State certificates before practice may be commenced. 9 8 Lewis v. Slack, 27 Mo. Ap. Engineering Jurisprudence, p. 119; Badger v. Kerber, 61 111. 446-7. 328 ; Clark on Architects, p. 94 ; 9 Cp. Chap. 454, Laws of 1915, Wait on Architectural and New York, amending Chap. 25, 6 LAW OF ARCHITECTURE AND BUILDING 4. Architect to Have No Concealed or Con- flicting Interest in Contract. Inasmuch as the position of the architect is one of trust and confi- dence, it is clear that he must not, certainly not without the consent of the owner, have the slight- est pecuniary interest in the contract or in its performance, other than his interest under his agreement with his employer, or private agree- ments or understandings of any character what- soever, relative to the contract or the work in hand, with the contractor or with subcontractors or employees. Such agreements or understand- ings at once disqualify the architect from acting in that entirely disinterested and single-minded manner, which his position of trust and confidence requires. By entering into any such private agreement or understanding, or by securing any pecuniary interest in the contract other than his interest under his agreement with his employer, the architect exposes himself at once to the danger of dismissal by his client; for it is a well recog- nized legal principle that an architect who has any pecuniary interest in a contract or its performance other than his interest in the agreed compensation which he is to receive, or, in the absence of express agreement regarding compensation, his interest in such reasonable compensation as he may be en- titled to, or an architect who has accepted com- missions in connection with the contract from the New York Laws 1909; N. California, Stat. 1901, p. 641, J. P. L. 1902, p. 54; vol. I, N. and see, Fitzhugh v. Mason, 2 J. Compiled Stat. pp. 110-113, Cal. App. 220, 83 Pac. 282. THE RELATIONSHIP IN GENERAL 7 contractor, has so acted as to make it impossible for him to continue properly to represent his em- ployer, and that the latter will be justified in ter- minating the employment forthwith accordingly. 10 Where the superintendent of a building whose duties required that he pass upon accounts for ma- terials furnished, made an agreement with a lum- ber dealer, by the terms of which the latter was re- quired to pay the superintendent a commission on all sales of lumber made as a result of the exercise of his influence with those by whom he was em- ployed^the court held the agreement to be void as against public policy, and this although it ap- peared that it was not the duty of the superin- tendent to pass upon accounts for materials fur- nished to his employers. 11 The same court in a shortly subsequent decision decided that a writing charging a supervising architect with having given work upon a building, in connection with which he was employed, to certain persons who paid him a commission therefor, was not action- able per se, 12 which is to say that it did not in itself charge the architect with any criminal or dis- graceful conduct, or hold him up to public con- tempt, scorn, ridicule, or obloquy, or tend to injure him in his profession. While opinions may, per- haps, properly differ as to whether such a state- |10 Norris v. Day, 10 L. J. lish Encyclopedia of Law, N. S., Exch. in Eq., 43; Tahr- 2d. ed., vol. 2, pp. 815-816. land v. Rodier, 16 L. C. Rep. "Atlee v. Fink, 75 Mo. 100, 473; Lloyds Law of Building 42 Am. Rep. 385. and Buildings, second edi- * 2 Legg v. Dunleavy, 80 Mo. tion, 11; American and Eng- 558, 50 Am. Rep. 512. 8 LAW OF ARCHITECTURE AND BUILDING ment is libelous or not and there are those who believe that in our American regard for free speech and a free press, we have not always ac- corded sufficient protection to the individual, against slander and against libel these two cases well illustrate the importance in which the courts hold the trust obligations, if we may so term them, of the architect: in that, even where it does not appear that any damage has been occasioned the owner by the acceptance of a commission by the superintendent, nor yet that the mere acceptance of the commission is in itself to be taken as an im- proper act morally on the part of the superintend- ent, yet the requirement that one in the latter's position shall be free to carry out his duties with- out being influenced consciously or unconsciously by conflicting interests, is so insistent that the commission agreement referred to was properly held to be against public policy and consequently void. Where the architect brings suit for professional services rendered and the owner, in defending, claims negligence on the part of the architect and it appears that the builder has made advances or loans to the architect, these advances and loans are properly provable by the owner as bearing upon the question of negligence alleged in the answer, no actual fraud having been pleaded. 13 So too the duties of a building superintendent are of such a nature that it is not proper that he be appointed by or controlled by the contractor ; and 18 Oilman v. Stevens, 54 Howard's Prac. (N. Y.) 197. THE RELATIONSHIP IN GENERAL 9 the inconsistency of the two positions is such that a contract for the employment of the contractor as superintendent of his own work will not be implied. 14 If the architect accept employment from the contractor or builder this act on his part will in at least one jurisdiction be held to relieve the owner from any liability based on claims for extra work ; 15 and where the architect prepared the plans and specifications and thereafter was made the contractor for the erection of the building, he was not allowed to claim that a defect in construc- tion was one of plans and specifications and not of building, since he was responsible both for plans and for construction. 16 5. Limitation of Rule Estoppel of Owner. While it has been seen that no private agree- ments or understandings between the architect and the builder will be countenanced, it should be noted, in limitation of the general rule, that, in cases where the circumstances are or must be known to the owner, the mere existence of an agreement between the architect and the builder will not be allowed to be interposed by the owner as a bar to a recovery by the architect for his services. Thus where the owners employ an ar- chitect to superintend the construction of a build- ing of which he is, also, one of the contractors, a * Friedland v. McNeil, 33 ie Louisiana Molasses Co. v. Mich. 40. Le Sassier et al., 52 La. Ann. 15 Day & Co. v. Pickeris 2070. County, 53 S. Carolina, 46 at p. 50. io LAW OF ARCHITECTURE AND BUILDING they are not allowed in an action by the architect to recover for his services as such superintendent, it appearing that the services have been properly performed, to plead, in defence that, by reason of his occupying the two inconsistent positions of ar- chitect and contractor, a recovery is barred on the grounds of public policy. 17 Similarly, the con- tract of an architect with a builder, made with the knowledge of the owner and attached to the original building contract and recorded, is not to be considered as void unless actual fraud or de- ception be shown. 18 6. Assumption of Good Faith. While the courts will not encourage or countenance any act by the architect inconsistent with his position of trust and responsibility they are, nevertheless, in- clined to consider the architect, by reason of the very nature of his profession, honorable and single-minded in his employer's interest until the opposite be shown, and will not adopt a strained construction of his natural and entirely honorable acts. In accordance with this position a French court has refused to presume that the architect was employed by the builder from the fact that the builder went to the architect to see the plans or to borrow them, 19 and from the comparatively in- finitesimal number of cases in England and in this country in which any improper conduct on the 17 Shaw v. Andrews, 9 Cal. al. ; Hayne v. Gray ; 125 Cal. 73- 372. 18 Orlandi et al v. Gray et 19 Poitras v. Deslauriers, 4 Rev. Leg. 375. THE RELATIONSHIP IN GENERAL 11 part of the architect has appeared, it is evident that the architectural profession may, with no small degree of satisfaction, view the record for loyalty to its ethics, to its duties and to its re- sponsibilities, established by its individual mem- bers. CHAPTER II 7. Importance of Agency Relationship. There is probably no phase of the whole subject of architecture which presents more questions for legal determination and none presenting situa- tions of more difficulty and requiring more care- ful handling by the architect, not only in the inter- est of his client but in his own interest as well, than that dealing with the character, scope and effect of the agency of the architect. In employment necessitating merely the prepa- ration of plans and specifications, or the giving of expert advice, and in all matters of mere con- sultation or dealings with the client alone, the question of agency does not arise, but the moment that, as in the ordinary case, there is added the duty of superintendence, or dealings in behalf of the owner with the builder or third parties, the question of agency becomes at once of vital im- portance; and the directions to the contractor in regard to the work, the allowance of extras, the giving of certificates, the changing of the contract in any detail of construction, material, or other- wise, all are at once involved. 8. Agency, Express and Implied. The 12 THE ARCHITECT AS AGENT OF THE OWNER 13 agency of the architect may, broadly speaking, be either express or implied. Where express, that is where the authority has been conferred in defi- nite terms, it may be either written or oral ; where implied and where, consequently, there is no formal agreement either written or oral by which to determine and measure the extent and charac- ter of the authority conferred, the question of the architect's agency will be determined by the ordi- nary principles of the law of agency modified as they may be by circumstances, and by the customs and rules governing the practice of the architec- tural profession. When the terms are express, whether written or oral, no amount of custom will justify a departure from them assuming of course that there are no provisions which are illegal or opposed to public policy and the terms of the authority delegated must be strictly re- spected and adhered to and will be disregarded or exceeded by the architect at the immediate risk of his incurring a direct personal liability. 1 9. Extras. Of the many questions which arise in connection with the agency of the archi- tect there are none, probably, of more vital inter- est to the owner, to the architect, and to the builder, than those which relate to the matter of 1 Homersham v. Wolver- nap et al., 27 Vt. 673 ; Ahern v. hampton Water-works Co., 6 Boyce, 19 Mo. Ap. 552; Exch. 137; Thayer v. Vermont Woodruff v. Rochester and Central Railroad Co., 24 Vt. Pittsburgh Railroad Co., 108 440; Vanderwerker et al. v. N. Y. 39; Weggner v. Green- Vermont Central Railroad stine, 114 Mich. 310; Redfield Co., 27 Vt. 125, Id. 130; Her- on Law of Railroads, 6th ed., rick v. Estate of Sewall Belk- vol. I, p. 430. 14 LAW OF ARCHITECTURE AND BUILDING extra work. Almost invariably, before the con- tract has been finally completed, some extra work becomes necessary. It is in the interest of all con- cerned that the respective rights and liabilities of the parties in this connection be as clearly under- stood as possible. The owner should understand them that he may not be put to needless expense ; the builder that he may not be placed in a position, where, after proceeding in good faith with extra work, he finds he can not recover for the work which he has done; and the architect should un- derstand them, both that he may safeguard the interests of his client and that he may not himself incur a personal liability to pay for extra work performed as the result of an authorization given by him, but which he had no power or right to give. In every case where the contract contains a clause or clauses designed to protect the owner from claims for extra work, both the architect and the contractor will do well to proceed most cautiously, the one in authorizing and the other in performing any extra work, in any manner in- consistent with a strict interpretation of the con- tract provisions. In a leading case already referred to 2 a con- struction company contracted with the defendant, a railroad company, to construct a portion of its road. The construction company in turn made a contract with a third company to complete a cer- tain portion of the section of the road covered by 2 Woodruff v. Rochester & Pittsburgh R. R. Co., 108 N. Y. 39- THE ARCHITECT AS AGENT OF THE OWNER 15 the contract between the construction company and the railroad company. The third company in turn sublet a portion of the work undertaken by it, to the plaintiffs. Included in the terms of the subcontract was the following: "Extra Work nor shall any claim be allowed for extra work unless the same shall be done in pursuance to a written order from the engineer in charge and the claim made at the first settlement after the work was executed, unless the chief engineer, at his discretion, should direct the claim or such part as he may deem just and equitable to be allowed." The plaintiffs in performing their work were called upon to do considerable excavat- ing which was necessitated by the sides of the cut which they were making caving in on a number of occasions. For this work they claimed extras and the proof tended to show that they did the work at the request of the engineers in charge. There was no evidence that these engineers had any special authority whatever from the defend- ant to bind it for this work, or to enter into any contract on its behalf relative thereto. Neither did it appear that the defendant had ratified the agreement alleged to have been made with the plaintiffs by the engineers. The Court, after re- ferring to the terms of the contract with reference to extra work and above quoted, said : "This was one of the terms of the contract and we are unable to perceive that the engineers had any power or authority to alter or change it. It was inserted in the contract to protect the defendant from claims for extra 16 LAW OF ARCHITECTURE AND BUILDING work which might be based upon oral evidence, after the work was completed and when it might be difficult to prove the facts in relation thereto. If the engineers in charge had an unlimited authority to change the contract at their will, and to make special agreements for work fairly embraced therein, then the defendant had very little protection from the reduction of their contract to writ- ing. If these engineers were the agents of the defendant, they were its agents with special powers, simply to do the engineering work and to superintend and direct as to the execution of the contract. But they had no power to alter or vary the terms of the contract or to create obligations binding upon the defendant not embraced in the contract." To state the rule in slightly different form: "Where the contract contains express provisions that no allowance shall be made against the com- pany for extra work unless directed in writing under the hand of the engineer or some other per- son designated, or unless some other requisite for- mality be complied with, the party who performs extra work, upon the assurance of any agent of the company, that it will be allowed by the com- pany, without the requisite formality, must look to the agent for compensation and can not recover of the company, either at law or in equity." 3 8 Redfield on the Law of and additions, also provides Railroads, 6th ed., vol. I, p. that no payment for extra 430; White v. San Rafael and work shall be made, unless the San Quentin R. R. Co., 50 latter has been ordered in Cal. 417, holding a verbal writing by the engineer; Kirk order for extra work to be of v. Guardians, etc., 2 Phila. no effect where the contract, 640, i Redfield Am. R. R, while providing that the engi- Cases, 305. neers may direct alterations THE ARCHITECT AS AGENT OF THE OWNER 17 It must be clearly understood that inasmuch as the agency of the architect is limited by the terms of the contract between himself and his client, the fact that he is employed as architect does not in itself constitute him the general agent of the client. 4 The owner may constitute the architect his general agent for all purposes and by declar- ing him broadly to be "the agent of the owner" invest him thereby with authority to bind the owner for extras and for alterations, 5 but the general rule is entirely clear that an architect en- gaged to superintend the construction of a build- ing must see that the contract is carried out in ac- cordance with its terms, and has no right whatso- ever, in the absence of special authorization, to change, to alter, or to modify, the terms of the contract between the owner and the builder, nor to make new contracts involving additional ex- penses, nor to make any alterations in the plans and specifications, nor to authorize extra work or material other than that specified in the original contract. 6 4 Starkweather v. Goodman, v. Dick, L. R. 13 Eq. i. 48 Conn. 101 ; Crockett v. 6 Fireproof Building Co. v. Chattahoochen Brick Co., 95 First National Bank, 54 Super. Ga. 540; Adlard v. Muldoon, Court (N. Y.) 511; Glacius et 45 111. 193; Coombs v. Beede, al. v. Black, 50 N. Y. 145; 89 Me. 187; Leverone v. Dillon v. City of Syracuse, 5 Arancio, 179 Mass. 439; Silv. Supreme Court (N. Y.) Weeks v. The Rector, etc., of 575, 9 N. Y. Supp. 98, 29 N. Trinity Church, 56 (N. Y.) Y. St. Rep. 912; Fitzgerald v. A. D. 195; Dodge v. McDon- Moran, 141 N. Y. 419; Wood- nell, 14 Wls. 553. ruff v. Rochester, etc., R. Co., "Langley v. Rouss, 85 (N. 108 N. Y. 39; Richard v. Dark, Y.) A. D. 27; Kimberly, 43 Misc. (N. Y.) 622; Stark- i8 LAW OF ARCHITECTURE AND BUILDING 10. Illustrations of Rule. A leading case on this whole agency question, decided in Connecti- cut, as early as 1880, arose on the following state of facts : a builder entered into a written contract with the defendant whereby he agreed to furnish the materials to build a house for the defendant in accordance with specified plans and specifications and for an agreed compensation. It was pro- vided that all the materials and work should be accepted by the architect, who was specified, and that the latter should superintend the construction of the building. The builder, in entire good faith and under the direction of the architect, per- formed certain extra work, which varied from weather v. Goodman, 48 Conn. 101; Gray v. La Societe Fran- caise, etc., 131 California, 566; Maldard et al. v. Moody et al., 105 Ga. 400 ; but see Smith et al. v. Farmers Trust Co., 97 Iowa 117, to the effect that where the contract expressly stip- ulates that excavations shall be made under the direction of the architect specified, a variation from the plans, by direction of the architect, although without the knowledge of the owner, will not justify any deduction from the contract price. Adlard v. Muldoon, 45 111. 193 ; Campbell v. Day, 90 111. 363; Watts v. Metcalf, 23 Ky. L. Rep. 2189, 66 S. W. Rep. 824; Lewis v. Slack, 27 Mo. App. 119; Bond v. The Mayor, etc., 19 N. J. Eq. 376; Mayes v. Reg, 23 Canadian Sup. Ct. 454, affirm- ing 2 Exch. 403 ; Jones v. Reg., 7 Can. Sup. Ct. 570; Reg. v. Stars et al., Can. Sup. Ct. 118; Baltimore Cemetery Co. v. Co- burn, 7 Maryland, 202 ; Stuart v. City of Cambridge, 125 Mass. 102; Mclntosh v. Hast- ings, 156 Mass. 344; Day v. Pickens Co., 53 S. C. 46; Dodge v. McDonnell, 14 Wis. SS3J Wagner Co. v. Cawker, 1 12 Wis. 532 ; Fontano v. Rob- bins, 22 App. Cas. (D. C.) 253; Sharpe v. San Paulo, etc., Co., 27 L. T. Rep. N. S. 699, L. R. 8 Ch. App. 605 (notes), af- firmed in L. R. 8 Ch. App. 597; Rex. v. Peto, i Young & Jarvis 37; Cooper v. Langdon, 9 Meeson & Welsby 60; Hud- son Bldg. Contracts, vol. I, sec. 3 THE ARCHITECT AS AGENT OF THE OWNER 19 and was in addition to the work outlined in the plans and specifications. When the house was nearing completion, the builder furnished the de- fendant with a written statement of the extra work and material and the defendant at that time made no objection to it, although it does not ap- pear that he ratified it. It appeared also that at the time when the builder gave the defendant the written notice referred to, the extra work had been actually performed upon and the materials had been actually used in the construction of the building and become a part thereof, and could not be withdrawn. Subsequently, other extras were ordered by the architect and furnished by the builder. It did not appear that at the time when the builder rendered his first bill for extras, he suggested to the defendant the possibility of more extras being needed or indeed that any thought was given to this point by either of the parties. The Court below gave judgment for the plaintiff and the defendant appealed. The higher court reversed the judgment, holding: "The contract sets forth the extent of Easton's agency for the defendant; he is only to see that the materials and workmanship are in accordance with the specifica- tions. There remained no opportunity to Smith to ex- tend that power by inference, and when he furnished materials for or performed labor upon the house in ex- cess of the specifications upon the order of Easton, he assumed the risk of ratification by the defendant. Nor is the defendant estopped from insisting upon this contract limitation upon Easton by the fact that when 20 LAW OF ARCHITECTURE AND BUILDING the house was nearly completed he received in silence a statement of work, and materials not specified in the written contract, which included some which he had not ordered ; for these had been wrought into the building and were then beyond possibility of withdrawal by Smith, however strongly the defendant might have protested against payment for them. It is very clear therefore, that, as to these extras, Smith was not led into any ac- tion resulting in loss to him by the failure of the defend- ant to make the objection. But it is said that other extras were afterwards or- dered by Easton and furnished by Smith, and that, what- ever might be the effect of the defendant's silence upon the extras already furnished, he ought to be regarded, by reason thereof, as authorizing the extras afterwards ordered. But it does not appear that Smith at that time suggested to him that there might be other extras or- dered by Easton, or that the matter was thought of by either of them. Besides the question whether the de- fendant intended to influence the future action of Smith, or was guilty of such gross negligence that he could be chargeable with that intention, and the further question whether Smith was influenced by his conduct, were both questions of fact and not of law, and it is impossible for us to find these facts when the court below has failed to do so." 7 In another leading case in Massachusetts, the plaintiffs offered to show that they did the certain work for the value of which the suit was brought under the direction of the defendant's agent, the architect; that they stated to the latter that the work was not included in their contract and that he told them "to go ahead and do the work as he directed and they would be paid for it." The Court excluded this evidence, holding that 7 Starkweather v. Goodman, 48 Conn. 101. THE ARCHITECT AS AGENT OF THE OWNER 21 "the written contract carefully provides that any addi- tions to or deviations from the plans or specifications shall be directed in writing by the committee or architect, and that 'it is expressly agreed that no alterations or additions are to be paid for unless so directed in writing.' No evi- dence was offered of any waiver of this provision by the defendant, or of any authority in the architect to waive it. This clause was intended to protect the defendant against claims for extra work under alleged oral directions or contracts. If the evidence offered can be construed to show an oral promise by the architect, founded upon a sufficient consideration, to pay for the work sued for as extra work, it was made without authority, and is not binding upon the defendant." 8 The same rule has been applied, and vigorously, in New York State. In one instance, a building contract provided in the specifications that Kings Winsor cement should be used and the work car- ried out under the direction of a certain superin- tendent. Elsewhere in the specifications it was provided that the cement should be mixed "with equal parts good sharp and dry sand." There was also a provision that in the event that any dis- pute should arise respecting the true construction of the specifications, the matter should be decided by the architect, "whose decision shall be final and conclusive." The plaintiff, a subcontractor for the plastering work, filed a mechanic's lien for his services and materials, and brought an action to foreclose the same. On the trial of the action, it appeared that the cement mixture used was two parts sand and one part cement. The plaintiff Stuart v. Cambridge, 125 Mass. 102. 22 LAW OF ARCHITECTURE AND BUILDING testified that the variation from the specifications in the preparation of the mixture was in accord- ance with the direction of the superintendent. A letter was also introduced which the architect had written to the plaintiff, in which he stated that the plaintiff was not doing the work in accordance with the contract and was not following the in- structions of the superintendent, and in which he directed him to follow those instructions "to the letter." The Court below dismissed plaintiff's complaint and the Court of Appeals by Chief Justice Andrews affirmed the judgment below in the following language : "There is some evidence tending to show that the varia- tion from the specifications in the proportions of sand and cement was directed by the superintendent of King & Company, but it is plain that the provision that the plastering should be done under the direction of the su- perintendent of King & Company had relation to the manner of applying the plaster, and gave him no author- ity to change the component parts of the mixture spe- cifically prescribed. ... It is difficult to see how a letter complaining of the work as not complying with the con- tract could be construed as an authority to follow the instructions of the superintendent of King & Co., in re- spect of a matter fixed by the specifications and a de- parture from which in reducing the proportion of cement would not be of advantage to the owner of the building." 9 In another New York case the plaintiff brought action to recover for work done and materials furnished in a building constructed by the de- fendants, under the direction of their architects. 9 Fitzgerald v. Moran et al., 141 N. Y. 419. THE ARCHITECT AS AGENT OF THE OWNER 23 The question arose whether the architects had made, or had in any case a right to make, with the plaintiff, a new contract relative to the work and binding upon the defendants. It appeared that the architects were employed by the defend- ants to prepare the plans and specifications, to secure estimates, and to superintend the erection of the building. The Court held that "the employment as archi- tects to superintend the building and see that the persons with whom the defendants had contracted performed their contracts would not give the ar- chitects authority to make new contracts." 10 ii. Other Limitations on General Agency. In the absence of provisions giving to him specific authority so to do, the architect can not employ a new contractor to do work already undertaken by the contractor originally chosen, 11 nor can he sub- stitute, either as respects the performance of the work or the payment therefor, a subcontractor for the principal contractor, nor does the mere fact that the owner happens to see the work being done by the subcontractor serve to make the owner liable; for, in the absence of special cir- cumstances, it will be presumed that the owner has the right to suppose that the work is being done for the principal contractor. 12 10 The Fireproof Building "Campbell v. Day, go 111. Co. v. The First National 363 ; Bouton v. Supervisors of Bank, et al., 54 N. Y. Super. McDonough County, 84 111. Court, 511. 384, but note that this is a 11 Campbell v. Day, 90 111. case of public rather than of 363. private agency. 24 LAW OF ARCHITECTURE AND BUILDING So, in the case of a public corporation at least, certificates cannot be given to subcontractors, 13 and neither certificates nor orders issued must vary from the form specified in the contract, if a form be specified. 14 Similarly, when the archi- tect is, either orally or by the terms of the written contract, given authority to certify extras and authorize alterations, the client will not be held liable unless the architect complies with and keeps strictly within the terms of the authority con- ferred. 15 Just as the architect has no right in the absence of express authority to order extras or altera- tions, so too, in the absence of such express au- thority, he has no right to allow the contractor to vary from the terms of the contract either as re- spects materials or construction, or as to any of its substantial details or provisions, nor to allow any detail of construction or material to remain which is contrary to the contract terms and pro- visions. 16 It has been held also that the architect has no general authority to exercise a supervision 18 Bouton v. McDonough 162; Burke v. City of Kansas, 34 County, 84 111. 384. Mo. App. 570; Starkweather v. 14 Mills v. Weeks, 21 111. 561. Goodman, 48 Conn. 101; Stuart "Ahern v. Boyce, 19 Mo. v. City of Cambridge, 125 App. 552; Woodruff v. Roch- Mass. 102; Cooper v. Lang- ester, etc., R. Co., 108 N. Y. don, 9 M. & W. (Messon & 39; Commune de Calombier. Welsby), 60; Bond v. The Saugnieu v. Duchez et Sa- Mayor, etc., 19 N. J. Eq. 376; voye. Dalloz Jurisprudence Clark on Architects, p. 87; Generate, 1883, part 3, p. 92. Wagner Co. v. Cawker, 112 16 Glacius et al. v. Black, 50 Wis. 532; Hudson, Building N. Y. 145 ; Bonesteel v. The Contracts, vol. I, 3, p. 16. Mayor, etc., of N. Y., 22 N. Y. THE ARCHITECT AS AGENT OF THE OWNER 25 over the letting of subcontracts or the employ- ment of workmen, 17 nor yet to receive a notice of the assignment of the building contract so as to bind the owner. 18 12. Special Agency To Be Carefully Exer- cised. It must be understood that all of the limi- tations on the powers and authority of the archi- tect, referred to, are limitations upon his powers and authority under his general agency, and that if, orally or in writing, he be authorized to exer- cise a special authority, or be appointed broadly the general agent of his employer as to all matters relating to the contract or building, his authority will be enlarged accordingly. Thus, for instance, he may be given, specifically, full discretion and authority to pass upon and order extras or altera- tions, or accept work of a different character than that specified, or to change contractors, or to vary the terms of the contract between his employer and the contractor in such details as he may think best. If he be given such special discretion and authority, he will be justified in exercising it accordingly. He cannot, however, be too careful to ascertain before he acts the exact extent and scope of his authority, for it often happens that provisions delegating to him special authority and which he may consider justify him in assuming certain authority, are legally to be construed as so limited by the other general conditions of the con- tract, or by the rules of agency, as to make his 17 Lewis v. Slack, 27 Mo. 18 Renton v. Monniere, 77 App. 119. Cal. 449. 26 LAW OF ARCHITECTURE AND BUILDING actual authority and discretion much less than he supposes it to be. Thus a provision giving to the architect the power to make changes in plans or specifications, has been held not to contemplate or authorize any radical changes from the plans or specifications, but only such incidental changes as may fairly be considered to be necessary to complete the work, in accordance with the general intentions of the parties. And where a contract provided that a dam to be constructed was "to be built of ma- sonry" and then provided that the engineer in charge could "make alterations in the line, grade, plans, form, position, dimensions, or materials," it was held that the authority was insufficient to authorize the engineer to change the dam from one of masonry to an earthen dam with a masonry core. 19 13. Estoppel of Owner. It must not be sup- posed that the owner can, under any and all cir- cumstances, when the architect has exceeded the limits of his agency powers, escape responsibility if by his conduct he has impliedly ratified his agent's acts, or so acted himself as to cause others to reasonably suppose that the acts of the agent were with his approval, and so estopped himself from claiming, certainly as to third parties, that the acts were in reality without his sanction or authority. So, where alterations are ordered by the architect in the presence of the owner, who 18 The National Contracting Co. v. Hudson River Water Power Co., 192 N. Y. 209. THE ARCHITECT AS AGENT OF THE OWNER 27 does not then demur or question them, the author- ity of the architect to order such alterations is pre- sumed, and this even though in the contract it be provided that any orders for alterations must be in writing. 20 Similarly if the architect, during the progress of the work, has made repeated changes in the plans which the owner has ratified and approved, and the architect makes further ex- tensive changes and alterations, the contractor is justified, by the actions of the owner, in depending on the architect's authority as to these final changes and alterations and the owner, who has received the benefit thereof, cannot successfully defend an action by the contractor, on the ground that the architect has exceeded his authority. 21 The architect in his capacity as superintendent, may be considered the agent of the owner within the scope of his authority, 22 but he is the agent of the owner for the purposes only of the contract in connection with which he is employed. 23 14. Delegation of Powers The General Rule. As in the case of an attorney or special trustee, so in the case of an architect, his employ- ment is based upon personal trust, and upon confi- dence in his honesty, ability and skill. He cannot 20 Perry v. Levenson, 82 N. 22 Vanderhoof v. Shell, 42- Y. A. D. 94; affirmed, without Oregon 578; Brin v. Mc- opinion, 178 N. Y. 559. Gregor (Tex. Civ. App. 1898) 21 Jackson Architectural Iron 45 S. W. 923; Kilgore v. North- Works v. Rouss, 39 St. Rep. west Texas Baptist Educa- 359, 15 N. Y. Supp. 137 judg- tional Society, 89 Tex. 465. ment affirmed without opinion, 2S Richard v. Clark, 43 Misc. 133 N. Y. 538. (N. Y.) 622. 28 LAW OF ARCHITECTURE AND BUILDING therefore, without express authority or permis- sion so to do, delegate his authority to another. This is in accordance with the old agency maxims of delegatus non potest delegare and delegata po- testas non potest delegare. In one State at least these have been so strictly applied as to forbid the architect from delegating his authority as arbi- trator to his partner without the consent of his employers. 24 15. Limitation of Rule. When a firm is em- ployed, as a firm, and dependence is not placed specially upon one member of the firm, the fore- going rule would not apply, and where an archi- tect's partner has been in charge of the work and has been recognized by both the owner and the contractor as being so in charge, he can by signing an arbitration provided for in the contract bind both parties, although his individual name does not appear in the firm title and is not mentioned in the contract. 25 In any event if the parties mu- tually consent there can be no objection to the ar- chitect delegating his authority to another, and, of course, the parties themselves may waive con- ditions in the contract which, without express au- thority, the architect could not waive. 26 24 Wright v. Meyer (Tex. McPherson v. Rockwell, 37 Civ. App. 1894), 25 S. W. Rep. Wis. 159; Boden v. Maher, 1 122. 105 Wis. 539; Wambald et al. 25 Wymard v. Deeds, 21 Pa. v. Gehring, 109 Wis. 122 ; Super. Ct. 332. Page on Contracts, 1468; 26 Smith v. Molleson, 148 N. Weatherhogg v. Board of Com- Y. 241 ; Wagner Co. v. Cawker, missioners of Jasper County, 112 Wis. 532; Bannister v. 158 Ind. 14. Patty's Exec's, 35 Wis. 215; THE ARCHITECT AS AGENT OF THE OWNER 29 The rule delegata potestas non potest delegare must not be taken as meaning that there are no details of the work which an architect can prop- erly delegate to others, for it is manifest that it would be impossible, as a modern architect's office is conducted, for the architect to personally attend to every detail, no matter how slight or trivial. There are many duties, of a more or less minis- terial and clerical character, which can and indeed must be delegated, if the work is to be carried for- ward with despatch, and without undue interfer- ence with other work in hand. The general rule is well stated in an early English decision where it is said that "Where a man employs an agent relying upon his peculiar aptitude for the work intrusted to him, it is not competent to that person to dele- gate the trust to another. But, where the act to be done is of such a nature that it is perfectly in- different whether it is done by A or by B, and the person originally intrusted remains liable to the principal by whomsoever the thing may be done, the maxim above referred to (delegata potestas non potest delegare) has no application." 2T In another and comparatively recent English case, in which the decision of the Master of the Rolls was upheld, the statement of facts and decision are in point : "By the terms of the contract the architect could order the removal of any materials used in the building that appealed to him as not up to the specified quality. What the architect actually did 2T Hemming v. Hale et al., 7 C. B. N. S. (Common Bench, New Series) 487. 30 LAW OF ARCHITECTURE AND BUILDING was to examine the wood on the ground, and, find- ing that it was not of the required quality, he di- rected the clerk of the works to mark the timbers already put in the roof of the sorting house to which he objected. Upon that gentleman's re- port, the architect framed his certificate, and the question was whether in these circumstances the architect could be said to have adjudicated on the matter. It was perfectly obvious as a matter of business that one could not expect an architect to go into every detail himself and he (the Master of the Rolls) had no hesitation in holding on the authorities that the architect, having himself first ascertained that the timber being used was not of the stipulated quality, was perfectly entitled to delegate the duty of particularizing which of the timbers had to be removed." 28 1 6. Due Care Required in Delegation of Au- thority. In delegating his authority the architect should be careful to delegate it to one in whom he can reasonably feel entire confidence as by placing more than a reasonable amount of confidence in the clerk to whom the authority is delegated he would, by reason of his negligence in so doing, render himself liable for any damages occasioned the owner by reason of the incapacity of, or im- proper performance of his duties by, the clerk. 29 The architect must remember that it is always he 28 A. M. Brice "The Legal Builder, Nov. 15, 1902, p. 456. Authority of the Architect as 29 A. M. Brice, supra, citing an Agent," quoting Graham v. Lee v. Lord Bateman. Times, The Commissioner of Works, October 31, 1893. THE ARCHITECT AS AGENT OF THE OWNER 31 himself who is the agent of his client and that while he may delegate such details as it is proper and reasonable that he should, the responsibility remains his and the owner has the right to look to him and to him alone for the proper performance of his duties as architect. 17. Power to Act in Emergencies. The question often arises whether, under circum- stances of sudden necessity or exigency, the archi- tect may order extra work to be done or steps taken, under the powers conferred upon him in the ordinary case. If a beam break, for instance, is the architect authorized to have emergency measures taken, at once, and without consultation with the owner, for the safety of the other details of the work and of the building? It has been stated that whether an agency "is conferred in the one way or the other (viz., orally, or in writing), it is, unless the contrary manifestly appears to be the intent of the party, always construed to include all the necessary and usual means of executing it with effect/' 30 And in a leading case in New York State, the rule is held to be that "whatever may be necessary to complete an act an agent is authorized to perform is included within the authority of the agent." 31 Following this rule and the rule that an architect has authority to proceed in the usual way, 32 it has 80 Story on Agency, 9th ed., 82 Moon v. Guardians of the 58, page 71. Poor, 3 Bingham's N. Cas., 81 Robinson v. Springfield 814. Iron Co., 39 Hun (N. Y.) 634. 32 LAW OF ARCHITECTURE AND BUILDING been stated that an architect is able in an emer- gency and unforeseen circumstances, to bind his employer for extra work and materials and to disregard the letter of the original agreement where such extra work and materials, although a variance from the terms of the agreement, are, nevertheless, necessary to secure the safety and the security of the building. 33 It does not seem safe, however, to accept this as the approved general rule. The Indiana case of Gibson County v. Matherwell, etc., Co., referred to by Mr. Clark, as above noted, is itself decided on a state of facts showing that the building was accepted by the owner, and in both this and other respects does not seem to justify the broad doc- trine for which it has been cited, and there are varying views in most respectable jurisdictions. 34 While the courts may be inclined to stretch a point here and there to relieve the architect where he has acted, probably for the best, under circum- stances of sudden necessity, they recognize, never- theless, the danger of any general opening of the door, to an extent which might be taken advan- tage of to unduly broaden the rules which ex- perience has shown it to be wise to adopt in limita- tion of the implied powers and authority of an agent. 1 8. Dangers of Implied Authority. An architect in ordering extras or alterations or ad- 33 Clark on Architects, p. 82, 84 Stuart v. Cambridge, 125 citing Gibson County v. Math- Mass. 102; compare Art. 18, erwell Iron, etc., Co., 123 Ind. general conditions, Appendix 364- B, p. 230. THE ARCHITECT AS AGENT OF THE OWNER 33 ditions, by reason of the very fact of his employ- ment as the agent of the owner, must, in many cases, impliedly represent himself as having au- thority to authorize the extras and changes di- rected, and, as it has long been recognized that an architect falsely representing himself as hav- ing authority to bind his principal for work and materials incurs a personal liability therefor, 35 it is apparent that, with the best of intentions, the architect may, by a little excess of zeal or lack of care on his part, incur a loss far exceeding any possible compensation received by him from the work in hand. So, in the case of extras, he has no implied authority to authorize as extras work which should have been included or shown in his own specifications or drawings, nor work which, while not specified, is absolutely essential to the completion of the contract and for which it should have been the duty of the builder to make allowance in his estimate, knowing it to be essential ; nor yet, may he, where his drawings are not practicable, order as extras the work neces- sary to make them practicable. 36 19. General Precautionary Suggestions. There is but one way in which the architect can properly protect himself from the danger of in- curring personal liability under one or another phase of his position as the agent of his client, and that is to exercise the utmost care not to ex- 8B Randell et al. v. Trimen, "A. M. Brice, "The Legal 18 C. B. (Common Bench) Authority of the Architect as 786. an Agent." 34 LAW OF ARCHITECTURE AND BUILDING ceed the express or implied authority which he knows himself to possess ; not to act on any point where there is the slightest doubt of his full au- thority to act, without securing that authority; to take nothing for granted, but to be guided by the contract and by the authority which, orally or in writing, he has received ; to refuse to take the chance that the owner will ratify what has been done, where it is possible to in any way communi- cate with the owner and secure his approval and assent ; and wherever a point of ambiguity or un- certainty arises, to ascertain, before acting, just what construction, legally, is to be placed upon the provisions by which his authority and liability are specified, governed and determined. It may well be that, as a practical matter, in many cases, a quick decision will be necessary and that it will be impossible to secure the approval of the client in advance, but so far as possible, noth- ing should be taken for granted or assumed on the point of agency if the architect would avoid com- plications and personal loss. If the contract or understanding under which he is acting does not clearly confer upon him such authority, express or implied, as a particular development may neces- sitate, let him, before acting, secure that authority if this be a possibility, in writing if practicable, if not, orally, in person or by telephone, in some form in any event. Only by doing this will he be protected, and only thus will he avoid the dan- ger of suffering sooner or later, and, in all likeli- hood sooner rather than later, a loss which will THE ARCHITECT AS AGENT OF THE OWNER 35 more than counterbalance any advantages which he may have secured by taking chances in the past and by trusting merely to the sense of fair- ness of those employing him to save him harmless. And let him always, under any circumstances, be very critical of any authority which is by implica- tion rather than express, even though the implica- tion seem to his mind entirely clear and inevitable. CHAPTER III THE COMPENSATION OF THE ARCHITECT 20. Introductory. The right of the archi- tect to receive compensation for his work is nat- urally a matter of prime importance to him. If he is to be in a position to properly protect his rights in this connection, and at the same time avoid unnecessary and expensive misunderstand- ing and possible litigation, he should understand the theory upon which his right to compensa- tion is based and the circumstances under which he may or may not rightfully demand and re- cover compensation for services rendered. Matters which, to the lay mind, may seem of little or no importance may, in fact, prove to be determining factors in deciding whether or not the claim of the architect for compensation is valid and enforcible. A very few words or a very simple writing at the proper time may make his right to compensation entirely clear, while a failure to speak the words or to secure the writing may mean that, after the work of the architect has been done, some technical or other objection may be successfully urged as a bar to his recovery. It is no less desirable that the owner shall un- 36 THE COMPENSATION OF THE ARCHITECT 37 derstand the terms and effect of his contract with the architect and the rules governing his own lia- bility to reimburse the latter for services ren- dered. 21. Theory of Recovery Contract and Quantum Meruit. The recovery, by an architect for services rendered may be based either upon the theory of direct contract or upon the theory of what is known in the law as quantum meruit. If based upon the contract, the recovery is for the specified amount which by the terms of the contract the owner has agreed to pay the archi- tect as his fee. If based upon quantum meruit the recovery is not upon the theory of a definite contract price, but for the reasonable value of the work done and services rendered. In the ordi- nary case of a suit for goods sold and delivered, for instance, the recovery may be for a certain number of yards of goods at an agreed price, of, say, one dollar a yard, or, if no price has been agreed upon, and the goods have been delivered and accepted by the defendant, the recovery may be for the reasonable value of the goods delivered, which may be a dollar a yard, or more or less. So, in the case of personal services rendered, if a definite commission or rate of compensation has been agreed upon, the recovery will be in accord- ance with the commission and rate thus estab- lished. If there has been no such definite agree- ment the recovery will be for such amount as will represent the reasonable value of the services ren- dered. 38 LAW OF ARCHITECTURE AND BUILDING It will be seen that there is a vast difference between these two theories of recovery. In the case of a definite contract the architect need not prove that the services are reasonably worth the amount claimed all that he need prove is that the client agreed to pay him a certain sum in com- pensation for his services, that the services have been performed and that the agreed compensa- tion has not been paid and is due accordingly. If he cannot prove such definite agreement then it is that he must fall back upon the quantum meruit count and ask compensation for the rea- sonable value of his services. If there has been a definite contract the fee agreed upon is, of course, just as controlling upon one of the parties as upon the other; that is, the architect, if he agree to serve for an agreed compensation cannot claim more, on the theory that the services are worth more, and, disregarding the existence of the con- tract, elect to recover on quantum meruit instead ; and, similarly, the client cannot, under these cir- cumstances, pay less than the amount agreed, where the services have been duly performed in accordance with the terms of the contract. If there be no contract a recovery may be had for the full reasonable value of the services rendered irrespective except in so far as this may be con- sidered in determining the reasonable value of whether their value is more or less than the amount which the architect might have been will- ing to accept, if a definite agreement had been entered into. THE COMPENSATION OF THE ARCHITECT 39 In a case where the architect and owner enter into a definite contract covering the amount of the compensation to be paid, and the contract is performed by the architect and the building is completed in the ordinary course and without dif- ferences arising, there will be little room for any complications in regard to the architect's fee. But when the cases are reached wherein no defi- nite contract is made, and preliminary sketches are prepared with no statements made and noth- ing said in regard to the matter of compensation ; or, where special conditions regarding the char- acter of the building or its cost are stipulated by the owner as terms of the contract; or where plans are submitted in competition, or where, after ordering the preparation of sketches and plans and specifications, the owner for one reason or another decides not to proceed with the contract, very different situations are presented situa- tions which in their very nature make it quite possible, and indeed probable, that differences of opinion will arise, as to whether any fees are pay- able, and if so, to what extent they are payable and in what amounts. 22. Recovery in Absence of Special Condi- tions or Agreement. An architect is no more an eleemosynary institution than any other profes- sional or business man, and, in general and in the absence of such other circumstances or conditions as are noted hereafter, where a client requests an architect to prepare and furnish plans and the latter does so, he is entitled to be paid for his 40 LAW OF ARCHITECTURE AND BUILDING services. 1 And unless at the time the order for the plans is given and the work on them is done it is agreed directly, or impliedly from what is said, that they are submitted on approval, or on conditions specified as to their acceptance, the client, by requesting their preparation and by re- ceiving them, incurs a liability to pay for such of them as may be completed before the order is countermanded, and this entirely irrespective o whether the plans are ultimately used or not. 2 23. Effect of Specified Conditions, Where the owner gives to the architect specific directions in regard to the character of the plans desired, the architect cannot recover unless the plans are made in accordance with the directions received, 3 and the architect will at once imperil his right to recover for his services, if he disregards in any way any conditions which the client may have specified, in regard to the work to be done, or as terms of the contract between them. 24. Conditions Re Cost. There is no point perhaps in the question of compensation which should be approached more carefully by the archi- tect, or which will more often be taken advantage 1 Smithmeyer v. U. S., 25 Ct court below ; Nelson v. Cl. 481, judgment affirmed 147 Spooner, 2 F. & F. 613; Kutts U. S. 342; Maas v. Hernandez, v. Pelby, 20 Pick. (Mass.) 48 La, Ann, 264, 19 So. 269; 65; Marcotte v. Beaupre, 15 Canfield (New England Monu- Minn. 152; Driscoll v. Inde- ment Co.) v. Johnson et al., pendent School District, 61 144 Pa. St 61, 22 Atl. 974. Iowa 426. 2 Pierce v. Thurston, 40 App. 3 Smith v. Dickey, 74 Texas Div. (N. Y.) 577, reversing 61, II S. W. 1049. THE COMPENSATION OF THE ARCHITECT 41 of to prevent recovery by him for his services, than the question of the cost of the building to be erected. It is entirely natural that the intending builder, when he first interviews the architect, should mention the probable cost which he has in mind, and it is natural too that the architect, in conferring with him, should make to him some statement, more or less definite, regarding the amount which a building of the character de- scribed by the client will probably cost. Any statements by the architect, or conversations be- tween him and the owner, which can be construed either as an implied or express condition or war- ranty that the building can or shall be erected for a certain sum, or which can be construed as an estimate on the part of the architect of the prob- able cost of the building, may be fatal to his right to recover for his services, if the client sees fit to take advantage of the situation. In all proba- bility the condition most frequently specified by the owner is that the plans are to cover a building which shall not exceed in cost a definite specified maximum. Where such a condition is prescribed, or where as a result of what has passed between the architect and the owner, the understanding can be said to be that the cost of construction shall not exceed a certain sum, or that the plans are accepted on condition that it shall not exceed such sum, no compensation can be recovered for the plans or for their preparation in the event that, as finally submitted, they cover a building 42 LAW OF ARCHITECTURE AND BUILDING exceeding in cost the stipulated maximum amount. 4 Again, if the architect submit esti- mates of the probable cost of the building, he cannot recover his fee for the plans prepared un- less the cost of the building is reasonably close to the estimates submitted. 5 25. Limitation of Rule. Under these cir- cumstances, however, where the architect gives merely the probable cost of the building, the mere fact that the cost exceeds slightly the estimate which he has made will not in itself defeat his re- covery, for it is the province of the jury to deter- mine whether the estimate submitted by the archi- tect is reasonably near the actual cost of the build- ing, and the architect has a right to have this question submitted to the jury for determination. 6 If, also, the architect upon finding that the cost of the building, if erected in accordance with the plans prepared and submitted, will exceed the amount stipulated by the owner as the maximum amount which the building is to cost, or will ex- ceed the cost as given in his estimate, submit sug- gestions as the result of which and by following which the work can be properly done at a less cost, 4 Horgan v. New York, 1 14 1049 ; Feltham v. Sharp, 99 Ga. N. Y. A. D. 555 ; Walsh v. 260, 25 S. K 619. St. Louis, etc., Assn., 101 Mo. 6 Moneypenny v. Hartland, I 534; Ada St. Methodist Epis- C. & P. (Carrington & Payne), copal Church v. Garnsey, 66 352, 2 C. & P. 378; Nelson v. 111. 132; Maak v. Schneider, Spooner, 2 F. & F. (Foster 57 Mo. App. 431 ; Emerson & Finlanson) 613 ; Smith v. v. Kneezel, 62 S. W. (Tex. Civ. Dickey, 74 Tex. 61, supra. App. Dec. 1900) 551 ; Smith v. 6 Nelson v. Spooner, 2 F. & Dickey, 74 Tex. 61, 11 S. W. F. (Foster & Finlanson) 613. THE COMPENSATION OF THE ARCHITECT 43 and at a cost meeting and consistent with the re- quirement as to the stipulated maximum cost or the estimate submitted, he will be entitled to his compensation. In a leading case on this last point, decided in Iowa, the architect, in consideration of a three per cent, commission, agreed to furnish pre- liminary sketches and complete working drawings and specifications, to superintend the building operations and to make settlement of all accounts. He prepared the plans and specifications and was proceeding to carry out the other provisions of his agreement when the owner announced his de- cision not to proceed with the building. It ap- peared that the parties contemplated a building to cost not more than $10,000, and that the plans and specifications as originally prepared entailed an expense in excess of $16,000. Subsequently, finding that the cost would reach this sum and thus exceed the $10,000 contemplated, the archi- tect suggested certain changes which would bring the cost within the contemplated $10,000 limit. The drawings were then accepted by the owner. The Court held that the architect could recover for his services in preparing the plans and specifi- cations and that the fact that the drawings, as at first prepared, called for a $16,000 building was, under the circumstances, no bar to the right of recovery. It should be noted that in the fore- going case there was a direct acceptance of the plans by the owner, which of course strengthens the position of the architect; but the doctrine, as 44 LAW OF ARCHITECTURE AND BUILDING laid down, is nevertheless clear, that an architect by suggesting changes whereby the cost is reduced within the amount specified may place himself in a position where the owner cannot rightfully re- fuse payment on the ground that the cost exceeds the amount specified or estimated. 7 Of course, such suggestions for modifications, whereby a re- duction in cost is to be effected, must be made in practical form, in good faith, and with reasonable promptness; they will not have the same favor- able effect, from the standpoint of the interests of the architect, if made tardily or after the claim has been pressed and a recovery for services sought. In the event that the fact that the cost exceed, in a given case, the stipulated maximum, is due to the interference of those by whom the architect is employed, and the endeavor of the latter in good faith to meet their demands in regard to the build- ing these demands necessitating a more costly building than contemplated and a building of no particular character is specified, the architect may recover. 8 26. Necessity of Delivery. In order to en- title the architect to recover for the plans prepared it must be shown that they have been delivered or that the delivery of them has been prevented or waived by the owner. Mere preparation of them in the office of the architect, if they are not deliv- ered to the client who has ordered them or in 7 Marquis v. Lauretson (Iowa 8 Coombs v. Beede, 89 Me. Sup. Ct. 1888), 40 N.W. 73. 187, 36 Atlantic 104. THE COMPENSATION OF THE ARCHITECT 45 accordance with his directions, will not ordinarily charge him with any liability to make payment for them, inasmuch as he has not received any benefit from their preparation. 9 Where an architect was directed to prepare plans for a theater, and he accordingly prepared a sketch and delivered it to the defendant, and the defendant kept it for a week and expressed his approval of it and told the architect to make the plans, and went so far as to have his builder call on the architect at the owner's request and take the plans and make and deliver to the owner an estimate based upon them, the plans were held to have been clearly delivered and the architect's right to recover for the value of his services was sustained. 10 Under the foregoing circumstances, all the general elements necessary to allow a recovery were present. There was not a specific contract, but the plans were prepared by the architect at the request of the defendant and there were no special conditions upon which the defendant stipulated that payment should be made. Having taken the plans and caused the architect to per- form the services in question, at his request, he could not then refuse to pay for them, and this, entirely irrespective of whether they were used by him or not. 9 Kutts v. Pelby, 20 Pick. v. Freres des Ecoles Chreti- (Mass.) 65; Wandelt v. Cohen, ennes, 34 L. C. Jur. 89. 15 Misc. (N. Y.) 90; Resher " Kutts v. Pelby, 20 Pick. (37 Mass.) 65, supra. 46 LAW OF ARCHITECTURE AND BUILDING 27. Delivery and Acceptance Distinguished. A delivery to, or the receipt by, the owner of the plans, however, must not be confused with an acceptance. It is quite possible that even if they are properly prepared and delivered, the owner may, on some pretext or another, or for some rea- son, valid or invalid, as the case may be, refuse to accept them. If the work has been properly done and the architect has complied with his agree- ment, the refusal by the owner to accept will not relieve him from liability and the acceptance is not, therefore, under such circumstances, neces- sary to complete the right of the architect to re- ceive compensation for his services; n but in the event of special conditions in the agreement, or of special circumstances under which the plans are submitted, acceptance may become of prime importance. Where, for instance, plans are sub- mitted on approval, or are submitted in competi- tion with plans prepared by others and on the un- derstanding that the plans which are accepted are to be the ones for which payment will be made, no recovery can be had if the plans are not accepted, inasmuch as acceptance under these circum- stances, is a condition precedent to the right of the architect to recover. 12 In the case, too, where an architect solicits the work of superintending the building and, of his 11 Canfield (New England 12 Audsley v. The Mayor, Monument Co.) v. Johnson et 74 Federal 274; Allen v. Bow- al., 144 Pa. State 61, 22 At- man, 7 Mo. App. 29; Walbank lantic 974. v. Protestant Hospital, 7 Mon- treal Q. B. 166. THE COMPENSATION OF THE ARCHITECT 47 own initiative and not at the request of the owner, leaves sketches with the latter in the hope that his doing so may result in his securing the employ- ment sought, and the owner returns the sketches and neither accepts them nor makes use of them, no recovery for them can be had. 13 This is on the theory that the services were not rendered at the request of, or sought by, the owner, but were purely voluntary and at the instance of the archi- tect alone, and for the purpose of inducing the owner to employ him to superintend the work. If the owner were to keep the sketches or make use of them, even though he had not sought the services of the architect in the first instance, and even though the services had not been performed at the request of the owner, payment for the sketches could be demanded for the reason that, having received the benefit of them, and retained and so accepted them, the owner could not refuse to reasonably compensate the architect for the services involved. 28. Necessity of Actual Contract Custom Alone Insufficient to Sustain Recovery. In the event that no contract of any character no meet- ing of their minds either in express terms or by implication, can be established between the owner and the architect, no amount of custom or usage can place upon the owner a liability to pay for services rendered. The evidence of custom or usage may be competent either as tending to show an implied agreement to pay a reasonable com* 18 Allen v. Bowman, 7 Mo. App. 29. 48 LAW OF ARCHITECTURE AND BUILDING pensation, or, if no such implied agreement be shown, competent upon the question of what a reasonable compensation under the circumstances would be ; but unless, in some way, an agreement by the owner, express or implied, can be deduced from the circumstances under which the services are rendered, such custom or usage can, as bind- ing him, have no force or effect whatsoever. 29. Illustration of Rule. A rather famous case in which this doctrine is enunciated and in which Mr. Melville W. Fuller, afterward Chief Justice of the United States, appeared as counsel for the plaintiff, was decided by the Supreme Court of the United States in October, i88o. 14 In that case, the County of Cooke and the City of Chicago, proposing to erect a building to combine a new court-house and city-hall, to be used and paid for respectively by the county and by the city, offered a premium for plans. The plaintiff furnished a plan accordingly and received the compensation promised. No additional contract between the parties was entered into. The city and county each adopted a resolution formally selecting the plan of the plaintiff, subject to such modifications as might thereafter be determined upon in the event that the plaintiff's estimate of the cost of construction should be verified. The plaintiff testified that thereafter he had verified the cost of the construction in the customary and usual way, and produced his plans and offered to prove their value and the time employed and the 14 Tilley v. County of Cooke, 103 U. S. 155. THE COMPENSATION OF THE ARCHITECT 49 expense incurred in the preparation of them. This evidence the Court excluded. The plaintiff further offered to prove that, by the usage and custom of architects, in the absence of a special contract, the superintendence of the construction of a building should be given to the architect whose plans were adopted. The Court likewise refused to allow him to submit evidence on this point. He then offered to prove that in accord- ance with the custom and usage of architects, in cases where prizes for plans submitted as his had been were offered, the plans were the property of the successful competitors and belonged to them, and if they were subsequently adopted as the plans in accordance with which the building should be constructed, were always paid for, inde- pendently of the special prize itself. This evi- dence likewise was excluded, as was also his evi- dence offered to establish the value of services in verifying the cost of the proposed building, ac- cording to his plans. The Court below directed thereupon a verdict for the defendants and the case came before the Supreme Court by writ of er- ror from that judgment. It did not appear that the plans of the plaintiff were used by either one of the defendants or that the building in connection with which they were prepared was ever erected. In substance, the plaintiff's claim was that, by virtue of the adoption of the resolution by the city council and county board, the city and the council were bound, without any further act on the part of the plaintiff, or further assent on his part, to 50 LAW OF ARCHITECTURE AND BUILDING proceed and erect the building in accordance with his plans and the estimated cost. It did not ap- pear that the services of the plaintiff, in verifying the cost of the proposed building in accordance with his plans, were rendered at the instance or request of the defendants or either of them, and hence a statement of facts was not shown as a result of which the law would imply a contract to pay for these services. The Supreme Court held that: "In this case, there being only an expression of purpose by one party to erect a building according to plans ante- cedently made by another and no obligation entered into by the other party, and no plans used or building erected there was no contract between the parties either express or implied. . . . Proof of usage can only be received to show the intention or understanding of the parties in the absence of a special agreement or to explain the terms of a written contract . . ." "In all cases where evidence of usage is received, the rule must be taken with this qualification, that the evi- dence be not repugnant to or inconsistent with the con- tract . . . 1 See 71, p. 130. CHAPTER III TERMS AND OPERATION OF BUILDING CONTRACT 65. The Architect as Arbitrator. One of the provisions of the ordinary contract which may be extremely helpful, if properly drawn and under- stood, and at the same time is perhaps as likely to cause difficulty as any other, is the provision deal- ing with the finality of the decision of the archi- tect and with his position as arbitrator. A provision that the decision of the architect, in regard to the construction and meaning of the drawings and specifications, shall be final is proper, and is recognized as entirely valid by the courts. Indeed, a provision in much fuller form and covering many points which the provision re- ferred to would not cover, such as a provision that the certificates, determinations and decisions of the architect shall be final and conclusive, has been recognized as valid, both by the Federal courts, by the courts of New York and by the courts of other States and of other countries. 1 1 Ripley v. United States, Handy v. Bliss, 204 Mass. 223 U. S. 695; Conners v. 513; Brown v. Decker, 142 United States, 130 Federal Pa. State 640; O'Brien v. 609; Farrell v. Levy, 139 (N. Reg., 4 Can. Supreme Court Y.) A. D. 790; N. Y. Building 529; Courtney v. Provincial Co. v. Springfield, etc., Co., 56 Commission, 41 Nova Scotia A. D. (N. Y.) 294; Sweet 71. v. Morrison, 116 N. Y. 19; 119 120 LAW OF ARCHITECTURE AND BUILDING 66. Limitation of Rule. In restriction of the general rule as stated it should be noted that its application is dependent upon the absence of fraud, 2 or mistake, 3 in the transaction. A pro- vision that the architect is to decide the true construction and meaning of the drawings and specifications, does not apply, the New York courts have held, to disputes regarding the con- struction of the contract. In a case where the question related to the necessity of the contractor filling in between iron beams on the basement floor with terra cotta blocks, under the provisions of the contract between him and the main con- tractor, it was held that this had nothing to do with the drawings and specifications, and that the decision of the architect relative thereto was, therefore, not controlling. 4 Another example of the comparatively strict construction which the courts have placed, in some instances, upon the provisions vesting the architect with large powers of decision or arbi- tration, is the holding of the British courts that, even where it is provided that any question aris- ing between owner and contractor, or relating in any way to the contract, or involving the deter- mination of a dispute between any of the con- tractors in regard to the building, shall be deter- 2 Ripley v. U. S., 223 U. S. Co. v. Springfield Co., 56 A. D. 695; N. Y. Building Co. v. (N. Y.) 294, supra. Springfield Co., 56 A. D. ( N. * Isaacs v. Dawson, 70 A. D. Y.) 294, supra. (N. Y.) 232 judg. aff'd 174 3 Farrell v. Levy, 139 A. D. N. Y. 537. (N. Y.) 790; N. Y. Building OPERATION OF BUILDING CONTRACT 121 mined by the architect, whose decision shall be absolute and final, yet, the differences between the contractor and his employees, as to extras, will not be covered by such a provision, and the provi- sion will be applied only to disputes in regard to the manner of carrying on the different depart- ments of the work. 5 While the courts have applied the restrictions noted, in the application of the general doctrine, it is still true that they have, with substantial una- nimity, recognized the validity of provisions vest- ing the architect with many different and broad authorities in his character of supervisor of the works and of arbitrator of disputes arising in connection therewith. Thus they have sustained and enforced the provisions so common in the building contracts and general conditions in use at the present day, providing that to the architect may properly be left the determination of any matters of differences, 6 whether relating to the quantity, quality or value of the work done ; 7 or to payments; or to the securing of certifi- cates preliminary to the payment of moneys due ; 8 or to performance ; 9 or to the measure- ment of the work ; 10 or to loss or expense or 8 Pashby v. Mayor, etc., of nagh, 38 Iowa 286 ; Older- Birmingham, 86 E. C. L. 2. shaw v. Garner, 38 V. C. Q. Mitchell v. Dougherty, 86 B. 37. Federal 859. 9 Wilcox v. Stephenson, 30 7 Elliott v. Missouri, etc., Co., Florida 377 ; Schliess v. Grand 74 Federal 707; Chicago, etc., Rapids, 131 Michigan 52. Co. v. Price, 138 U. S. 185. 10 McMahon v. N. Y. Co., 20 8 Wilcox v. Stephenson, 30 N. Y. 463. Fla. 377; Mitchell v. Kava- 122 LAW OF ARCHITECTURE AND BUILDING damage occasioned the owner by reason of a fault of the builder. 11 Under certain conditions this general rule may not apply. For instance, the provision requiring that the certificate of the ar- chitect must be secured before payment can be successfully demanded, will not be enforced where the death of the architect has intervened ; 12 and the provision making the architect the arbitrator of the amount or value of the work performed! or of the correctness of its performance, will not pre- vent the question of substantial performance be- ing raised, 13 or prevent the owner from refusing payment on the ground that substantial perform- ance has not been had. 14 67. Extras. The importance of any contract provisions in regard to extras has been already referred to. It should be noted here, however, that the ordinary contract provision requiring that extra work be authorized in writing, is of more than ordinary importance in the present con- nection. It is especially advisable on account of the dis- putes that may arise in connection with this pro- vision, that it be so phrased as to preclude any misunderstandings or difficulty, so far as this can possibly be done. The Connecticut courts have recognized as valid and have enforced the follow- ing form of proviso : "The contractor shall make 11 White v. Abbott, 188 Mass. 1S Schliess v. Grand Rapids, 99- 131 Michigan 52. 12 Pleasant College v. Colett, " Oberlies v. Bullinger, 75 142 Kentucky 342. Hun. (N. Y.) 248. OPERATION OF BUILDING CONTRACT 123 no claim for extra work unless the same shall be done in pursuance of a written order from the architect, and all such claims shall be made to the architect in writing before the next ensuing pay- ment, or shall be considered abandoned by the contractor." 15 This form might well be made a trifle fuller to prevent any possibility of mistake, but is interesting as exemplifying the main and essential points which the contract in this connec- tion should cover. The disposition of the courts is to protect the owner in regard to extra work, by requiring that contract conditions precedent in regard thereto must be strictly complied with. Even if there be a separate provision in the con- tract to the effect that disputes in regard to the value of extra work must be submitted to arbitra- tion, yet this provision will not in any way nega- tive the effect of a provision requiring the builder to produce the architect's certificate of the satis- factory completion of the extra work, inasmuch as the arbitration provision in such a case has to do merely with the value of the extra work, as distinguished from the proper completion there- of. 16 The courts have likewise very generally upheld and recognized the validity of the other provisions of the ordinary building contract, such as the provision that no extra work shall be done without the written order of the architect, and that no payment need be made for it, if done, "O'Keefe v. St. Francis's 16 Fox v. Powers, 65 (N. Y.) Church, 59 Conn. 551. A. D. 112. 124 LAW OF ARCHITECTURE AND BUILDING without the production of the architect's order. 17 The order may, however, be implied from some additional act of the parties, such, for instance, as the adoption of new specifications requiring extra work, an act which is, in itself, equivalent to a proper order for such work. 18 The validity has been upheld also of provisions that there shall be no departure from the contract terms or from the specifications or drawings, without the consent of the architect or engineer in charge, 19 and that there shall be no subletting of the contract unless the owner's consent be secured. 20 While these provisions are inserted for the benefit of the owner, he may, of course, waive them if he elect so to do. 21 68. Right of Owner to Complete. There is no doubt that the ordinary provision that upon the failure of the builder to do the work the owner may complete the contract and employ others to that end is good ; 22 and the courts have been liberal in their construction of such provi- * 9Q sions. Where the contractor leaves the work un- finished and fails to complete and the owner, un- "Langley v. Rouss, 185 N. 20 Danforth v. Tennessee, Y. 201. etc., Co., 93 Alabama 614. 18 Hedden Construction Co. 21 Danforth v. Tennessee, v. Rossiter, etc., Co., 136 N. Y. etc, Co. supra; Bartlett v. A. D. 601 compare O'Keefe v. Stanchfield, 148 Mass. 394, St. Francis's Church, 59 Conn. opinion by Holmes, J. 551. 22 Mahoney v. Oxford Realty 19 White v. San Rafael, etc., Co., 133 A. D. (N. Y.) 656. Co., 50 Cal. 417. 23 Duplan Silk Co. v. Spen- cer, 115 Federal 689. OPERATION OF BUILDING CONTRACT 125 der his contract right to do so under such circum- stances, comes in and completes, it has been argued, in behalf of the contractor, that the pre- sumption is that the balance of the contract price remaining unpaid at the time of the abandonment of the work by the contractor will be sufficient to defray the expense of completing the work. This contention is manifestly untenable and the law will not raise or recognize any such presumption under these circumstances. 24 69. Suspension of Work by Mutual Consent. It often happens that work is suspended by mutual consent of contractor and of owner. In such a case before the contractor can properly proceed to recover the profits of the contract, he must take some steps to continue the work. An action brought by him before he has made any at- tempt to continue the work, and when there has been no refusal on the part of the owner to allow him to continue the work and complete the con- tract, is premature. 25 70. Liquidated Damages. Upon the ques- tion of liquidated damages it is very difficult, if not impossible, to state any definite, enforcible and yet comprehensive rule. The provision that, in the event of delay in the completion of the con- tract, a certain sum shall be paid to the owner, as damages for each day or similar period that the 2 * Brainard v. The County 28 Dreyer v. McCormack of Kings, 155 N. Y. 538; Tri- Real Estate Co., 164 App. Div. Borough, etc., Co. v. Wechsler (N. Y.) 41. Realty Co., 163 N. Y. A. D. 901. 126 LAW OF ARCHITECTURE AND BUILDING work shall remain unfinished, is usually and in itself unobjectionable. 26 In one of the cases last cited 27 the clause in the contract provided that "the contractor shall pay to the owner Ten (10) Dollars for every day thereafter that the said work shall remain unfinished as and for liquidated damages," and in another case 28 it was provided : "It is mutually agreed and understood that in the event of said interior finish herein contracted for not being entirely finished on or before the I5th day of March, 1905, that the actual damages sustained by the owner will be difficult of computation ; therefore it has been agreed and hereby is agreed by and between the parties hereto that in the event of the failure of said contractor to have all of said interior finish of main entrance and eighth floor completed on or before the I5th of March, 1905, there shall be due and payable and said contractor shall pay to the said owner the just and full sum of $50.00 per day for each and every day after March I5th, 1905, that the same or any part thereof, remains unfinished and in- complete, and that said sum is hereby agreed upon as liquidated damages." These provisions were sustained as proper pro- visions, under the circumstances of their respec- tive cases, for liquidated damages, as distinguished from penalties. It must not be considered, how- ever, that it was due to any magic in the language used that the court sustained them, for it is a well- 26 Kelly v. Fejervary, 78 2T Kelly v. Fejervary, 78 N. Northwestern 828; Mills v. W. 828, supra. Paul, 30 Southwestern 558; 28 Chapman Co. v. Security Chapman Decorative Co. v. Co., 145 Fed. 434, supra; and Security, etc., Co., 145 Fed. see Standard Documents, Ap- 434, aff'd 149 Fed. 189. pendix B, p. 255. OPERATION OF BUILDING CONTRACT 127 recognized rule that in construing provisions of this character the courts will look at the intention of the parties, the subject matter, and the nature of the agreement, and from these determine the meaning of the wording used. 29 The reason that the courts will exercise special care in dealing with this point is that, under the law, provisions for liquidated damages are recognized as valid, while a provision which constitutes a penalty, will not be enforced; where such a provision is found the courts will use their own judgment in award- ing such damages as they deem reasonable. The question which must always be determined, therefore, is whether or not, in a given case, the words used, combined with the intention of the parties and with all the attendant circumstances, are to be construed as intending or providing proper liquidated damages, or are to be construed, on the other hand, as a penalty, and therefore as unenforcible. The wording, however, is not en- tirely negligible by any means, for where it is pro- vided that the amount specified is to be considered as liquidated damages the burden is upon the builder to show that, in reality, the provision con- stitutes a penalty, 30 while if the sum named is al- luded to as a penalty the burden is upon the owner to show, by a preponderance of proof, that it was intended to be and may properly be considered as liquidated damages. 31 It has been held that 29 Ward v. Hudson, etc., Co., 81 Small v. Burke, 92 A. D. 125 N. Y. 230. (N. Y.) 338. o Mills v. Paul, 30 S. W. 558. 128 LAW OF ARCHITECTURE AND BUILDING where the sum mentioned is disproportionate to the damage which will presumably or probably ensue, or to a degree of loss which is ascertain- able, it will be construed as a penalty. 32 Simi- larly, an agreement to build in a specified time, and in a particular manner, and in the event of failure to meet these conditions, to pay a gross sum specified in the contract has been construed to be a penalty. 33 The element most helpful in securing the inter- pretation of the contract provisions as provisions for liquidated damages is the element of uncer- tainty in the ascertainment of the loss which will result from delay. It may, indeed, be stated broadly and as a general rule, that in the case where it is impossible to ascertain, or where it is impossible to ascertain with any degree of exact- ness, the damage which will result from the delay, a situation will be presented where the sum named in the contract as damages if not clearly out of proportion to the probable loss will be considered to be damages and will not be construed to be in the nature of a penalty. 34 And this may be true, even where the word penalty is used. 35 In the 82 Coen v. Birchard, 124 to be for damages, if house had Iowa 394 holding a proviso been for private use as a resi- for the payment of $5 a day dence. a penalty, where the rental value 3S Tayloe v. Sandiford, 7 of the building was shown Wheat (U. S.) 13, opinion by to be but $25 per month; Marshall, C. J. and see Ward v. Hudson 3 * McCullough v. Moore, in River, etc., Co., 125 N. Y. Illinois Appeals 545. 230 indicating, however, that 3B McManus v. Rothschild, 25 provision would have been held Ontario L. R. 138. OPERATION OF BUILDING CONTRACT 129 words of the New York Court of Appeals in one of the cases already cited : 36 "Whether the sum agreed between parties to be paid, in the event of a breach of some agreement is termed by them a 'penalty/ or 'liquidated damages,' is not control- ling upon the question of construction. Their use of such words is not always conclusive as to their legal meaning. To get at that we must consider the subject- matter and nature of the agreement and understand clearly the intention of the parties. If it shall then ap- pear that the damage and loss, which may be presumed to result from non-performance, are uncertain and in- capable of exact ascertainment, then the payment or lia- bility fixed by them must be deemed to be liquidated dam- ages and recoverable as such. Where, however, a sum has been stipulated as a payment by the defaulting party, which is disproportionate to the presumable or probable damage, or to a readily ascertainable loss, the courts will treat it as a penalty and will relieve; on the principle that the precise sum was not of the essence of the agree- ment, but was in the nature of a security for perform- ance. This subject has been reviewed in very many opin- ions; to a few of the more interesting of which, in the English reports and in those of our State, I direct atten- tion. "In Lowe v. Peers (4 Burr, 2228, 2229), Lord Mans- field, and in Kemble v. Farren (6 Bing. 141), Tindal, C. J., discuss the subject. In Dakin v. Williams (17 Wend. 447 and 22 id. 201), Nelson, Ch. J., in the first re- port, and Chancellor Walworth, in the second, review the question in the light of the English and New York cases. See also Hosmer v. True, 19 Barb. 106; Lampman v. Cochran, 16 N. Y. 275; Clement v. Cash, 21 id. 253; Little v. Banks, 85 id. 258. "The result of an examination of cases is to confirm 88 Ward v. Hudson, etc., Co., 125 N. Y. 230. 130 LAW OF ARCHITECTURE AND BUILDING the idea that it is difficult, if it is even possible, to lay down a general rule applicable to all the cases which arise where parties have undertaken to provide against a loss consequent upon a breach of an agreement. We may, at most, say that where they have stipulated for a pay- ment in liquidation of damages, which are in their nature uncertain and unascertainable with exactness, and may be dependent upon extrinsic considerations and circum- stances, and the amount is not, on the face of the con- tract, out of all proportion to the probable loss, it will be treated as liquidated damages." A provision for liquidated damages will not be affected or negatived by another clause in the con- tract, referring to arbitration the matter of any damage caused by delay in the performance of the work. 37 71. Contract Not to Usurp Jurisdiction of the Courts. Finally, in regard to the provisions of the building contract it should be noted that the courts, while ready to give a broad construction to all proper provisions, for the purpose of recog- nizing and enforcing the intent of the parties, will, nevertheless, not countenance provisions which are of such a character that, if enforced, they will oust the courts of jurisdiction. The reference of disputes to arbitration is to be encouraged and the parties may enter into such proper arbitration covenants as they will, but care must be taken, if these are to be upheld and en- forced, that they do not invade the province of the courts, or attempt to leave to arbitration questions 87 Drumheller v. American Surety Co., 30 Wash. 530. OPERATION OF BUILDING CONTRACT 131 which it is the natural duty and province of the courts to pass upon. 38 In the case last cited the Court, under the facts there present, decided that the clause in the con- tract to which objection was made was not such that it should be held void as tending to oust the courts of jurisdiction and proceeded thus to state the distinction between provisions valid and in- valid in this respect : "The question presented by this demurrer is whether the clause in the contract above referred to, comes within the rule which nullifies contracts ousting the courts of their jurisdiction, or within another and equally well-es- tablished rule, that parties may covenant that no right of action shall accrue until a third person has performed specific acts or determined certain differences between them. The line of demarcation between the two classes of cases is clear and distinct. The difficulty, if any, lies in the application of particular facts to a clearly defined rule. In Seward v. City of Rochester (109 N. Y. 168) this rule was stated in the following language : 'The dis- tinction between executory agreements of arbitration which oust a court of jurisdiction and, therefore, are re- jected as a bar, and those which are sustained as a sole remedy between the parties, is carefully drawn and fully discussed in Delaware & Hudson Canal Co. v. Pa. Coal Co. (50 N. Y. 250).' In one class it is said 'the parties undertake by an independent covenant or agreement to provide for an adjustment or settlement of all disputes and differences by arbitration to the exclusion of courts ; and in the other they merely, by the same agreement which creates the liability and gives the right, qualify the right, by providing that before a right of action shall 88 National Contracting Co. N. Y. 439, reversing 67 A. D. v. Hudson, etc., Power Co., 170 (N. Y.) 620. 132 LAW OF ARCHITECTURE AND BUILDING accrue certain facts shall be determined or amounts or values ascertained, and this is made a condition prece- dent either in terms or by necessary implication.' The reasons for the rule thus clearly stated are fully set forth in Delaware & Hudson Canal Co. v. Pa. Coal Co. (supra) and need not be further adverted to here." As a guide to determining those cases in gen- eral where an arbitration stipulation is valid, and where, on the other hand, it is not valid because it will be construed to be of such a character that it will oust the courts of jurisdiction, it may be stated as a general rule that where the arbitration agreement merely provides that differences aris- ing under the contract shall be submitted to arbi- tration, under such conditions that the decision of the arbitrators will merely determine certain facts and amounts or values in controversy, which in themselves are conditions precedent to any right of action, the agreement will be upheld. Such an agreement merely qualifies the right of action of the claimant by providing the method by which the facts necessary to legal action may be determined and does not, therefore, so operate to oust the courts of jurisdiction that it will be considered to be illegal. 39 39 The President, etc., of the Y. 250 ; Sweet v. Morrison, Delaware & Hudson Canal Co. 116 N. Y. 19. et al. v. Penn. Coal Co., 50 N. CHAPTER IV "THE STANDARD DOCUMENTS" 72. In General, The issuance recently of "The Standard Documents of the American Insti- tute of Architects," which are copyrighted by the Institute and here published as Appendix B by special permission, is a matter of more than ordi- nary importance. The documents comprise forms for the agree- ment and general conditions of the contract, the bond of suretyship, the subcontract, the letter of acceptance of the subcontractor's proposal and various other forms applicable to the relationship and dealings of the owner and the contractor. The very evident care with which the docu- ments have been prepared, and the fact that they have received the approval of the National Asso- ciation of Builders' Exchanges, the National As- sociation of Master Plumbers, and the National Association of Steam and Hot Water Fitters, are alike indicative of the real advance marked by their publication. The simplicity of expression and general lack of ambiguity which character- izes them, together with the broad scope of their provisions should do much to prevent misunder- standings between the owner, the contractor and the architect, and to standardize on a mutually 133 134 LAW OF ARCHITECTURE AND BUILDING satisfactory and equitable basis, the general rights, duties and liabilities of the several parties. The provisions with reference to the owner- ship of drawings, the status of the architect, the decisions of the architect, liens, the relations of the contractor and subcontractor, and the rather full provisions for arbitration, are all of special interest to the architect. The form of the subcontract is so drawn that the general conditions of the contract as between the owner and the contractor are, by reference, made a part thereof. This is important in view of the various provisions in the general condi- tions referring to the obligations of the subcon- tractor. It will be noted that the provision governing the ownership of drawings and speci- fications is a term of the contract between the owner and the builder and may with advantage, therefore, be supplemented by a specific agree- ment between the architect and the owner to the same effect, if the latter desire to have his owner- ship of the plans and specifications clearly estab- lished and in binding form as between the owner and himself. The forms are so prepared as to be easily adap- table to any particular circumstances and provi- sion is made for the addition by the parties of such special provisions, as for instance provi- sions for liquidated damages as they may desire. The documents should be read in the light of the general rules and principles discussed in the "THE STANDARD DOCUMENTS" 135 last two preceding chapters and, especially, in the light of the statutory provisions, and of the legal doctrines, of those particular jurisdictions wherein they may be used. PART III LIENS CHAPTER I IN GENERAL 73. Definition. The application of the law of mechanics' liens to the varying relationships of architect, owner and builder is so frequent, that it seems appropriate that some mention in special detail should be made in regard to it. At the same time, it must be borne in mind, that the law of liens is, in itself, sufficient to provide material for an entirely separate treatise of goodly length. The lien law in a given case can only be properly determined by a reference to the particular laws of the State within the jurisdiction of which the case arises, and the various lien statutes are so dissimilar, in many and substantial details, al- though all based upon substantially the same gen- eral basic principles and ideas, that in the space which can be here allotted to the subject there must, necessarily, be included statements merely of the broader and more fundamental rules, to- gether with examples and notes of such decisions and statutes as are of more than ordinary applica- bility to the architectural profession and its problems. A mechanic's lien has been defined to be : "A claim created by law for the purpose of securing a priority of payment of the price and value of work per- 140 LAW OF ARCHITECTURE AND BUILDING formed and materials furnished in erecting or repair- ing a building or other structure, and as such it at- taches to the land as well as the buildings erected there- on." 1 And again to be : "a statutory lien upon buildings and other improvements on realty and the realty, favoring certain classes of work- men to secure them priority or preference of payment of compensation for work or materials." 2 And yet again to be : "a modern statutory right, designated to encourage the erection of improvements, and to protect those whose labor and materials enter into their construction." 3 The lien may be said to be in the nature of a mortgage, 4 or of a statutory quasi-mortgage founded upon consent, 5 or of a notice of lis pendens or attachment. 6 74. History of Lien Legislation. The rule whereby a mechanic, workman, laborer, or ma- terial man, contributing by his services to the im- provement of realty, is now so generally accorded the right of a lienor was unknown at common law which neither recognized nor allowed these lien 1 VanStone v. Stillwell & 68 Conn. 413; Kenny v. Gage, Bierce Manufacturing Co., 142 33 Vt. 302; Merchants Insur- U. S. 128, 136. ance Co. v. Mazange, 22 Ala. a Tommasi v. Archibald, 168; Pratt v. Tudor, 14 Tex. 114 N. Y. A. D. 838. 37. 8 Hammond v. Darlington, B Cummings v. Consolidated, 84 S. W. (Missouri, 1904) etc., Water Co., 61 Atl. 353. 446, 449. 6 5 Words & Phrases, 4463 ; *Loomis v. Knox, 60 Conn. Sawyer v. Schick, 30 Okla. 343; Throckmorton v. Shelton, 353. IN GENERAL 141 rights. 7 Equity, too, formerly failed to recognize the lien doctrine. 8 Gradually the feeling that one had enhanced the value of real estate by his services or by materials furnished or incorporated in the property, should be given a claim against the property, as a means of securing the payment or reimbursement due him for the labor or materials given, became so pronounced as to take form in definite legislation. A number of statutes were passed applying the lien doctrine to certain localities in various of the States, 9 Pennsylvania appearing to have the honor of having in 1803 prepared the first of the me- chanic's lien laws. 10 75. Early Conception and Development of Doctrine. The earliest conception of a mechan- ic's lien, as appears from the title itself, was that of a statute designed to protect mechanics, as such. 11 It was the extension of this primary con- ception of the doctrine which resulted in the pro- tection under the mechanic lien laws not only of 7 Birmingham Iron Foundry Brenckle, 249 111. 394 ; Ward v. v. Glen Cove Starch Manfg Co., Yarnelle, 173 Ind. 535. 78 N. Y. 30; Van Stone v. 8 Cockerill v. Loonam, 36 Stillwell, etc., Manfg. Co., 142 Hun. (N. Y.) 353; Rafter v. U. S. 128; Withrow Lumber Sullivan, 13 Abbts. Pr. (N. Y.) Co. v. Glasgow, etc., Co., 101 262; Hickey v. Schwab, 64 Fed. 863; Durling v. Gould, 83 How. Pr. (N. Y.) 8; Heamann Me. 134; Ex parte Schmidt, 62 v. Porter, 35 Mo. 137. Ala. 252. 10 Coddington v. Dry Dock 8 Withrow Lumber Co. v. Co., 31 N. J. L. 477. Glasgow, etc., Co., 101 Fed. u Savannah, etc., R. Co. v. 863; Slack v. Collins, 145 Ind. Grant, 56 Ga. 68; Sweet v. 569; Ellision v. Jackson Water James, 2 R. I. 270. Co., 12 Cal. 542; Turnes v. 142 mechanics, but of all persons, broadly speaking, who have performed work upon, or perfected or made repairs or improvements to, real prop- erty; 12 such as house-painters, 13 paper-hangers, 14 and construction companies. 16 By extension of the doctrine and the application of greater liberality in the provisions of the lien statutes, the mechanic's lien law as it now stands was brought about so that to-day provisions for mechanics' liens are to be found not only generally in the States of the United States 16 but through- out the various provinces of the Dominion of Canada as well. 17 England, probably by reason of the controlling precedent and effect of the com- mon law, did not join in the movement so general in the New World ; 18 and while the movement was especially marked in the Southern States, as in Texas and in California, it was not favorably re- ceived in Mexico. 19 76. Constitutionality. As was naturally to be expected in the case of legislation of this char- acter affecting a special class or classes, and creat- ing rights and privileges long unrecognized, the 12 Sweet v. James, 2 R. I. utes British Columbia 1911, 270. Ch. 154; Rev. Stat. of Mani- 13 Martine v. Nelson, 51 111. toba 1902, Ch. no; Consol. 422. Stat. New Brunswick 1903, Ch. 14 Freeman v. Gilpin, i 147 ; Consol. Stat. of New- Phila. 23. foundland 1892, Ch. 88. 15 Tennis Bros. Co. v. Wet- 18 Shaw v. Young, 87 Me. zel, etc., R. Co., 140 Fed. 193. 271. 16 Shaw v. Young, 87 Me. 19 Macondray v. Simmons, i 271. Cal. 393; Stowell v. Simmons, 17 Revised Statutes Ontario I Cal. 452. 1897, Ch. 153; Revised Stat- IN GENERAL 143 question of its constitutionality was promptly raised. Although, due to special provisions therein, the statutes were, in many instances, declared unconstitutional, yet, in their broad underlying principle and application, their con- stitutionality has been repeatedly, and substan- tially without exception, recognized and up- held. 20 77. Lien a Statutory Remedy. Stating, per- haps, in another way the fact that mechanics liens were unknown under the doctrines of the common law, it has been repeatedly held that they are abso- lute creatures of statute and are to be so con- sidered in determining their interpretation and application. 21 As a corollary to the foregoing rule, it necessarily follows that a substantial ob- servance of all statutory requirements and provi- sions is essential and a condition precedent to the validity and enforcement of the lien, and that 40 Brooks v. Railway Co., 124 Ga. 892; First Natl. Bank, 101 U. S. 443 ; Davis v. Alvord, etc., v. Trigg Co., 106 Va. 94 U. S. 545 ; Glacius v. Black, 327. 67 N. Y. 563; Newark Lime, **Van Stone v. Stillwell, etc., Co. v. Morrison, 13 N. J. etc., Manfg. Co., 142 U. S. 128; Eq. 133; Blauvelt v. Wood- Withrow L. Co. v. Glasgow, worth, 31 N. Y. 285; Schillin- etc., Co., 101 Fed. 863; Bir- ger Fireproof Cement, etc., Co. mingham I. F. Co. v. Glen Cove v. Arnott, 86 Hun. N. Y. 182; Starch Manfg. Co., 78 N. Y. affirmed 152 N. Y. 584; White 30; Frost v. Ilsley, 54 Me. v. Miller, 18 Pa. St. 52; Whit- 345; Wolf v. Pa. R. Co., 29 tier v. Wilbur, 48 Cal. 175 ; Pa. Superior Court 439 ; United Booth v. Pendala, 88 Cal. 36; States Blowpipe Co. v. Spen- Laird v. Moonan, 32 Minn. 358; cer, 40 W. Va. 698; Joplin McKeon v. Sumner Building, Supply Co. v. West, 149 Mo. etc., Co., 51 La. Ann. 1961; App, 78; Dufresne v. Prefon- Prince v. Neal Millard Co., taine, 21 Can. Sup. Ct. 607. 144 LAW OF ARCHITECTURE AND BUILDING the notice of lien must itself comply with the terms of the statute in all substantial particu- lars. 22 78. No Personal Liability. The mechanic's lien being fundamentally and essentially a claim against realty, it follows naturally that no per- sonal liability is created thereunder, whether as against the owner or as against anyone who, in the absence of statutory provision, would be under no personal liability to the lienor. 23 The fact already noted, that in every case, in determining lien rights, reference must be made to the particular statute involved, must not be lost sight of, however, and no statutory lien can be acquired in any event by one who cannot properly be classified as coming within the provisions of the special statute under which he claims. For instance, under a statute which gives a lien to masons and to carpenters, a plasterer may not be allowed to come in as a lienor. 24 79. Necessity of Contract. It should be noted here that as to all mechanics' liens it is a general rule that a contract, direct or indirect, to which the owner of the property is a party, cover- ing the work in connection with which the labor or 32 Tenth National Bank of 2S Crystal v. Flannelly, 2 E. Philadelphia v. Smith Con- D. Smith (N. Y.) 583; Cox. v. struction Co., 218 Pa. St. 581,67 Broderick, 4 E. D. Smith (N. Atlantic 872; Wharton et al. v. Y.) 721; Delafield v. Sayre, 31 Real Estate Inv. Co. et al., Vroom (N. J.) 449; Garrison 180 Pa. St. 168, 36 Atlantic 725 ; v. Borio, 61 N. J. Eq. 236; Knelly v. Horwath, 208 Pa. Bonncy v. Ketcham, 51; 111. St. 487, 57 Atlantic 957. App. 321. ** Fox v. Rucker, 30 Ga. 525. IN GENERAL 145 material for which the lien is claimed is performed or furnished, is a condition precedent to the at- taching of the lien. 25 In addition to the prices specified by the con- tract the lien' includes the value of extra work done or materials furnished. 26 In New York and other States this doctrine has been restricted to the cases where the extras are furnished pursuant to an agreement between the owner and con- tractor, and in accordance with the terms of the contract, in the absence of a waiver thereof. 27 But in Massachusetts in a decision by Mr. Justice Holmes, before the latter's appointment to the Federal Supreme Court, the Court recognized an implied authority in the contractor to sublet por- tions of the work, and sustained the right of his subcontractor to a lien for extra work. 28 It may be stated as a general rule that while the necessity of a contract direct or indirect is clear as has been noted, this contract need not, unless the statute expressly require it, be in writing to be 26 Cornell v. Barney, 94 N. Ind. 683; Webster City, etc., Y. 394; Knapp v. Brown, 45 Co. v. Chamberlin, 137 Iowa N. Y. 207; Muldoon v. Pitt, 54 717; Cole v. Clarke, 85 Me. N. Y. 269; Entenman v. An- 336; Horn, etc., Co. v. Steel- derson, 106 N. Y. A. D. 149; man, 215 Pa. St. 187. Meyers v. Daly, 7 Daly (N. Y.) 2 Costello v. Dale, i Hun. 471 ; Belding v. Cushing, i Gray (N. Y.) 489; Marshall v. (Mass.) 576; Simpson v. Dal- Cohen, 11 Misc. (N. Y.) 397; rymple, II Cushing (Mass.) Rush v. Able, 90 Pa. St. 153. 308 ; Herell v. Donovan, 7 App. * 7 Foley v. Alger, 4 E. D. Cases (D. C.) 322; General Smith (N. Y.) 719; 134; Coo r- Supply Co. v. Hunn, 126 Ga. sen v. Ziehl, 103 Wis. 381. 615; Wendt v. Martin, 89 111. 28 Perry v. Potashinski, 169 139; Coburn v. Stephens, 137 Mass. 351. 146 LAW OF ARCHITECTURE AND BUILDING effective to support a lien. 29 While in some States, an implied contract was formerly not con- sidered sufficient to support a lien, 30 yet in other jurisdictions, including New York, the lien has been regularly sustained notwithstanding the fact that the contract has been by implication merely. 31 39 Mornan v. Carroll, 35 Manchester v. Searle, 121 Mass. Iowa 22; Montandon v. Deas, 418. 14 Ala. 33. 81 Muldoon v. Pitt, 54 N. Y. 30 Rowley v. James, 31 111. 269 ; Hazard, etc, Co. v. 298, but see amendment to Loomis, 2 Disney (Ohio) 544; laws, same case, note; Parker |Vail v. Meyer, 71 Ind. 159; v. Anthony, 4 Gray (Mass.) Carney Bros. v. Cook, 80 Iowa 289; but see contra dicta in 747. CHAPTER II THE LIEN OF THE ARCHITECT 80. Development of Doctrine. Enough has been said of the history of lien legislation to make clear why it was that under the early statutes, and the early conception of the purposes and effect of lien legislation, an architect could not avail him- self of the advantages of a mechanic's lien. Under the modern extension of the lien doctrine, however, an architect has, quite properly and very generally, been considered as coming within the limitations and qualifications laid down by the various State statutes, although there is found a natural and considerable divergence of opinion in the laws of the different States as to the extent of the lien to which he is entitled, and the character of the work required to qualify him as a proper lienor. In New York the statute provides that "A contractor, subcontractor, laborer or material man who performs labor or furnishes materials for the im- provement of real property with the consent or at the request of the owner thereof, or of his agent, contractor or subcontractor, shall have a lien for the principal and interest of the value or the agreed price, of such labor or materials upon the real property improved or to be improved and upon such improvement, from the time of filing a notice of such lien as prescribed in this article." 1 1 Sec. 3, Article 2, New York Lien Law. 148 LAW OF ARCHITECTURE AND BUILDING The courts in construing the language of the sec- tion quoted have been liberal in interpreting the meaning of the term laborer, as there applied, and have held that this term applies to skilled, as well as to unskilled, labor, and includes the profes- sional services of architects. 2 As early as January, 1879, the Court of Ap- peals of New York, in a case arising under a mechanic's lien law of 1862, and already referred to, stated that : "The general principle upon which the lien laws pro- ceed, is that any person who has contributed by his labor, or by furnishing materials to a structure erected by an owner upon his premises, shall have a claim upon the property for his compensation. "The dealer who furnishes the paints and oils, the ordinary workman who applies them or the artist who uses his skill and taste in executing a mural painting, are alike protected by the act. And an architect who makes the plans and supervises the erection of a building is within the words and reason of the law." 3 81. Importance of Superintendence. The decisions in the various States bearing upon the right of the architect to the benefits of the lien laws vary considerably, according, largely, to the tendencies of the various jurisdictions in regard to lien legislation. But there is one very general element which will be found to exist in the ma- 2 Rinn v. Electrical Power 76 N. Y. 50, reversing 10 Hun.. Co., 3 N. Y. A. D. 305; Thorn- (N. Y.) 18. son-Starrett Co. v. Brooklyn 8 Stryker v. Cassidy, 76 N. Heights Realty Co., in N. Y. Y. 50, supra. A. D. 358; Stryker v. Cassidy, THE LIEN OF THE ARCHITECT 149 jority of the cases where liens have been allowed, and that is the element of superintendence. In a great number of cases decided in New York, New Jersey, Pennsylvania, and in the Federal jurisdiction this element is found in each in- stance. 4 In all of the cases last cited the lien of the architect was upheld, but in all, as noted, the element of superintendence was present. In some instances an exception to the general rule has been applied and the lien of the architect has been allowed where superintendence was lack- ing; 5 but again, even where the architect has pre- pared plans and specifications and given general directions to the builder, where it appears that the building has been erected under the special super- intendence of the builder, a lien has been refused. 6 Where there occurs a change of ownership of the property in connection with which the work is done, and it is agreed by the new owner that cer- tain additional work shall be done under the super- vision of the architect of the building, the lat- * Hubert v. Aitken, 15 Daly 506 ; Arnold! v. Gouin, 22 (N. Y.) 237; Stryker v. Cas- Grant's Chan. (Ontario) 314; sidy, 76 N. Y. 50; and see Taylor v. Gilsdorff, 74 111. 354; Gurney v. Atlantic, etc., Co., Knight v. Norris, 13 Minn. 58 N. Y. 358, distinguishing 473; Friedlander v. Taintor, 14 Ericsson v. Browne, 38 Barb. N. D. (104 N. W. 527), 393; (N. Y.) 390; Mutual Benefit, Field v. Consolidated Water etc., Co. v. Rowand, 26 N. J. Co., 25 R. I. 319; Von Dorn v. Eq. 389, reversed on other Mengedoht, 41 Neb. 525 ; Mulli- grounds, 12 C. E. Green (N. gan v. Mulligan, 18 La. Ann. 21. J.) 604. Bank of Penn. v. 5 Freeman v. Rinaker, 185 Gries, 35 Pa. St. 423; Phoenix 111. 172; Henry, etc., Co. v. Furniture, etc., Co. v. Put-In Halter, 58 Neb. 685. Bay Hotel Co., 66 Fed. 683; Raeder v. Pensberg, 6 Mo. Johnson v. McClure, 10 N. M. App. 445. ISO LAW OF ARCHITECTURE AND BUILDING ter having given his services to this work, is rightly held to be entitled to a lien, irrespective of the transfer of title to the building. 7 82. The New York Doctrine. In New York it has been definitely determined that the architect is not entitled to a mechanic's lien for the prepara- tion and furnishing of plans and specifications, unless, in addition, he superintend the work done thereunder. 8 Where, however, the architect does superintend the work, done pursuant to the plans and specifications which he has prepared, it is now the clearly established doctrine of the New York courts that he will be allowed to recover, not merely for the work done in his capacity as super- intendent, but for the preparation of the plans and specifications as well. 9 For his disbursements 7 Libbey v. Tidden, 192 Mass. the Maine statute allowing a 175. lien for materials furnished 8 Swasey v. Granite, etc., Co., and labor performed, a pre- 158 N. Y. A. D. 549; Rinn v. pared plan of a house, or a Electric Power Co., 3 App. model of a ship, or a mould by Div. (N. Y.) 305, distinguishing which the ship's timbers were Stryker v. Cassidy, 76 N. Y. 50, to be formed, did not enter which in turn distinguished into the structure in such man- Aitken v. Wasson, 24 N. Y. ner that they could be regarded 482, and Coffin v. Reynolds, 37 as falling within the terms of N. Y. 640, and reversed Stryker the statute and see Bank v. v. Cassidy in the court below, Gries, 35 Pa. St. 423. 10 Hun. (N. Y.) 18; Aimes v. 9 Embury v. 42d St. & Madi- Dyer, 41 Me. 397, where an ar- son Ave. Co. et al., N. Y. L. chitect sued for the value of J- April i6th, 1915; Spannhake work performed in preparing a v. Mountain Construction Co. set of moulds for the construe- et al., 159 A. D. (N. Y.) 727; tion of a ship, and for materi- and see Swasey v. Granite, etc., als used in such construction, Co., 158 A. D. (N. Y.) 549, and the court held that under supra. THE LIEN OF THE ARCHITECT 151 and expenses incidental to superintendence the ar- chitect may recover in full. 10 Where plans and specifications for a proposed building are prepared, and these preliminary plans are thereafter abandoned and the building erected pursuant to other plans and specifications, no lien will attach for the preparation of the abandoned plans and specifications. 11 83. The Massachusetts Doctrine. One of the clearest expositions of the doctrine that while the architect may have a lien for labor performed by him in supervising the erection of a building, yet his lien will not extend to labor performed in the preparation of plans and specifications, is to be found in the opinion of former Chief Justice Knowlton of the Massachusetts Supreme Court, delivered when he was an Associate Justice of that court, of which Mr. Justice Holmes, now of the Supreme Court of the United States, was likewise at that time a member. The Massachu- setts statute provided that a lien might be had for "labor performed or furnished . . . and actually used in the erection" of the building, and Judge Knowlton said : "The questions presented by this case are, first, whether an architect, who has drawn plans and prepared speci- fications for the construction of five houses under a con- tract to draw the plans and specifications and supervise the construction of the houses, and who has supervised the construction of one of the houses until it was about 10 Rinn v. Electric etc., Co., |J1 Buckingham v. Flummer- 3 A. D. (N. Y.) 305, supra. felt, 15 N. Dak. 1 12. 152 LAW OF ARCHITECTURE AND BUILDING half completed, and supervised the work of putting in the foundations of two of the others, involving an expendi- ture of about forty dollars upon one and about fifteen dol- lars upon the other, can have a lien under the Pub. Sts. c. 191, for the whole amount due him ; and secondly, if he can not, whether he can have a lien for the value of his services in supervising the work upon the buildings, con- sidered apart from the preparation of the plans and speci- fications. "The Statutes of the different States in regard to mechanics liens differ materially in their provisions, and the cases show a considerable conflict of authority upon the questions before us. But we are of opinion that, un- der statutes similar to ours, the weight of judicial opinion is in favor of holding that the services of an architect in preparing plans and specifications for a building are not the kind of labor intended to be protected by the statute, and, on the other hand, that services upon a building in supervising the work of construction enters directly into the construction so as fairly to be called 'labor performed or furnished . . . and actually used in the erection' of a building, within the meaning of these words in i of the Statute above cited. It is also generally held that the fact that one who does such work is an architect does not prevent him from recovering for this kind of service, which is often performed by an intelligent me- chanic. This is the doctrine of the highest court in Penn- sylvania, where the provisions of the statute are simi- lar to ours. (Price v. Kirk, 90 Penn. St. 47; Rush v. Able, 90 Penn. St. 153 ; Bank of Pennsylvania v. Cries, 35 Penn. St. 423.) Under a like statute in Missouri, it was held in Raeder v. Bensberg, 6 Mo. App. 445, that the services of an architect 'in drawing plans and specifica- tions and giving directions to the builder under whose special superintendence the house is being erected, can not be called, in any proper sense of the words, "work or labor upon the building." ' A similar decision was made THE LIEN OF THE ARCHITECT 153 in Foushee v. Grigsby, 12 Bush (Ky.) 75; Ames v. Dyer, 41 Maine 397, was a case arising under a statute giving a lien for labor performed and materials fur- nished 'for or on account of any vessel building or standing on the stocks,' etc., and the attempt was to estab- lish a lien for a mould constructed and used to form the timbers for a ship. The Court said that 'the plan of a house, the model of a ship, the moulds by which its tim- bers are to be hewed, may be necessary and even indis- pensable, but they do not enter into any structure so as to be a part of its materials, and cannot be regarded as within the proviso of the statute.' . . . "The preparation of plans and specifications is a pre- liminary to the construction of a building, and is often merely tentative. It may or may not be followed by a construction according to the plans. It is seldom that either the external or internal form of a building is de- termined upon, or that its identity is anything more than an indefinite mental conception until after the plans have been completed. We are of opinion that this professional work of the architect, in bringing into existence the defi- nite form and conception of a building which may be erected if the landowner adopts the plan, is not 'labor performed or furnished . . . and actually used in the erection' of a building within the meaning of our stat- ute. "We are of opinion that the work of supervision which is done directly upon the building, and which is partly physical, but in its more important part mental, may be the subject of a lien under our statute, even if done by the same person who prepared the plans as an architect." 12 As a logical development of the Massachusetts doctrine it is further held in that State that, where the contract is entire and not separable, and the amount due to the architect for services rendered "Mitchell v. Packard, 168 Mass. 467. 154 LAW OF ARCHITECTURE AND BUILDING in the supervision of the work, as distinguished from services rendered in the preparation of plans and specifications, can not be determined, a lien even for the work of supervision will be re- fused. 13 84. The Doctrines Contrasted Discussion. While the New York and Massachusetts doc- trines have been developed under statutes which vary in their provisions and phraseology, and while under the Massachusetts statutes the rule laid down by the courts of that State may be taken as legally correct, the broader interpretation made possible by the provisions of the New York statutes, and by the interpretation thereof by the New York courts, seems certainly entirely proper and equitable. It is difficult to understand why an architect who has devoted his best effort and many hours of his time to the preparation of plans and specifications, and who has superin- tended the work, should not be allowed adequate protection under the lien laws, while that protec- tion is accorded to the ordinary contractor or ma- terial man. The plans and specifications of the architect, in a very real sense, enter into and make possible, the improvement of the property. As a matter of good sense and of equity, it would in- deed seem that he should ultimately be accorded a lien for the preparation of plans and specifica- tions irrespective of whether he has superintended the work or not, provided that the work has been carried out in accordance with his plans and in 13 Libbey et al. v. Tidden et al., 192 Mass. 175. THE LIEN OF THE ARCHITECT 155 accordance with the specifications prepared by him. 85. Reference to Particular Statute Essential. It must be borne in mind always that the al- lowance or non-allowance of the lien is based pri- marily and fundamentally on the language of the particular statute involved. Under some statutes a lien may be allowed for work and materials only ; under others, the statute may include alterations ; and yet others may specify that the lien is allowed for the erection of the building. In New Jersey, for instance, a lien has been refused for a mere alteration, 14 but has been allowed for an addition to a building, 15 while in New York the courts in- quire primarily whether or not the improvements have become a part of, and incorporated in, the property; if they have, the mere fact that they are designed for special purposes, such as their use in outfitting the premises for the business pur- poses of the tenant, does not affect the right to the lien. 16 86. Lien by Contract. While it is true, as has been noted, that the lien is purely a creature of statute and dependent upon the statute, the owner may yet create mechanic's lien rights, or perhaps, more exactly speaking, rights of a char- acter similar to a mechanic's lien, by contract, be- tween him and the architect, or other person fur- nishing the labor or material. I say that it is 14 Updike v. Skillman, 27 N. "Updike v. Skillman, 27 N. J. L. 131, holding the addition J. L. 131, supra. of an extra story to a building 16 Mosher v. Lewis, 10 N. Y. an alteration merely. Misc. 373. 156 LAW OF ARCHITECTURE AND BUILDING more exact to speak of these rights, when created thus by contract, as rights similar to mechanics' lien rights, for the reason that the true mechanic's lien is always a creature of statutory enactment, rather than of private contract or agreement. 17 87. Lighting Fixtures. The law was some- what slow in recognizing the right to a lien for lighting fixtures as distinguished from improve- ments more strictly permanent, for the reason that lighting fixtures are, ordinarily, of such character that they may be easily separated from the realty proper, and were not, therefore, at first, nor until comparatively recently, considered proper bases for a mechanic's lien. Gradually the strictness of the rule in this connection was re- laxed, however, and a determination finally es- tablished, that in the case of specially designed electric lighting fixtures applicable to a special purpose and especially made to harmonize with, or become a definite and important part of, the structure proper, a lien would be allowed. 18 The New York Legislature in 1914 took the last radical step in the development of the lien doc- trine in the matter of lighting fixtures by specif- ically providing, that a lien might be had for serv- ices rendered in furnishing and installing electric lighting fixtures. In making this provision, the statute made no distinction between specially de- 17 Lippincott v. Yorke, 86 A. D. 17; Embury v. 426 St. & Tex. 276. Madison Ave. Co. et al., N. Y. 18 Wahle, etc., Co. v. SQth St. Law Journal, April i6th, 1915. Ik Madison Ave. Co., 153 N. Y. THE LIEN OF THE ARCHITECT 157 signed and ordinary fixtures and as the law now stands, therefore, this distinction has been abol- ished and a lien may be had for the manufacture and installation of fixtures generally. The terms of the amendment are as follows, the portion itali- cized being the matter added by the amendment of 1914: "Improvement. The term improvement, when used in this chapter, includes the erection, alteration or repair of any structure upon, connected with, or beneath the surface of, any real property and any work done upon such property, or materials furnished for its permanent improvement, and shall also include any work done or materials furnished in equipping any such structure with any chandeliers, brackets or other fixtures or apparatus for supplying gas or electric-light." 19 88. Consent of Owner. By reason especially of the modern development of apartments, office buildings and similar properties, the importance of the right to a lien, where the work has been done for a tenant and not merely for the owner direct, has been emphasized more and more of re- cent years. Where the work is done at the request of a tenant, the lien may be enforced, if it be shown that the owner has consented to and approved the doing of the work in the expectation that he will derive benefit therefrom, 20 and this irrespective of whether there is or is not a direct contract rela- tionship between the owner and the contractor. 10 New York Laws, 1914, ch. 20 Kerwin v. Post, 120 N. Y. 506. A. D. 179. 158 LAW OF ARCHITECTURE AND BUILDING This doctrine proceeds "upon the idea that he who furnishes materials for or does labor upon a building should be reimbursed to some just extent out of the improvement, of which the owner gets the benefit, . . . All that the Statute re- quires as the condition of the lienor's right to such re- imbursement is that the labor shall be done upon or the material furnished for the building in process of con- struction, with the assent of the owner or of the con- tractors." 21 If it be shown that the owner did not consent to the work being done, but that, on the contrary, the work was contracted for by the lessee entirely on his own account and after the owner had specifically refused to bear any of the expense thereof, the lien will not be enforced. 22 The consent of the owner need not, necessarily, be express, but may be implied, as well. If he ap- prove the work and receive the benefit accruing therefrom, he will be held to have impliedly con- sented that it be done. He can not stand idle and allow the work to be done and the benefit thereof to accrue to his property and then turn about and attempt to defeat the lien by the plea that his con- sent has not been given. 23 Stating substantially the same rule, in slightly different phraseology, it has been said that the lien statute in New York "proceeds upon the equitable principle that one who knowingly receives the benefit of the labor or 21 Pell v. Baur, 133 N. Y. 377. * National Wall-paper Co. v. 22 McNulty v. Offerman, 164 Sire, 163 N. Y. 122 ; and see N. Y. A. D. 949. Otis v. Dodd, 90 N. Y. 336. THE LIEN OF THE ARCHITECT 159 property of another in the form of improvements upon his land, ought to have his property sub- jected to a lien for the value of such improve- ments." 24 24 Butler v. Flynn, 51 N. Y. A. D. 225; and see also Nellis v. Bellinger, 6 Hun. N. Y. 560. CHAPTER III THE LIEN OF THE CONTRACTOR 89. Classes of Lienors. In considering the right of the contractor, or subcontractor, or ma- terial man, or mechanic, to a lien, it must, im- primis, be recognized that there is a clear distinc- tion in the lien laws between these various classes. The rule has been stated to be that if the claim- ant's "charge is for materials alone, then he is a material man ; if his charge is for work and labor in putting the materials in the building, then he is a contractor for the erection of the building;" * but this rule has later been held too narrow, in that one furnishing and placing in the building ma- terials in finished form should be allowed to claim as a material man just as readily as one furnish- ing raw materials alone. 2 Where the contract under which the lien is claimed is a direct contract between the owner and the lien claimant, and involves not only the fur- nishing of materials but their installation or in- corporation in the building as well, the question of whether the person between whom and the owner the contract is made, shall be considered the original contractor or material man, is largely 1 Vice Chancellor Stevenson, 2 Beckhard v. Rudolph, 68 N. in Beckhard v. Rudolph, 68 N. J. Eq. 740, reversing 68 N. J. J. Eq. 315. Eq. 315, supra. 160 THE LIEN OF THE CONTRACTOR 161 determined by the fact of whether or not the labor bestowed upon the materials in installing or in in- corporating them in the building, is comparatively insignificant or considerable, in comparison with the price of the materials so installed. 3 Thus, services consisting of papering and decorating rooms have been said to be the services of the original contractor, 4 while one furnishing an elec- trical plant 5 or one furnishing a steam plant, 6 has been considered a material man. To qualify as a contractor within the meaning of the lien laws it is not necessary that one be the holder of a contract for the entire work under way or contemplated; the owner may, as is entirely usual, enter into separate agreements with a number of different contractors, covering differ- ent phases of the work. 7 Under the more con- servative statutes, and in the earlier development of the lien law, the contractor was held to be not entitled to lien rights, for the reason that he could not be classed as a material man ; but the right of the contractor to lien protection is now very gen- erally recognized, and this in the very jurisdic- tions where previously a more restricted doctrine was adopted. 8 3 Bennett v. Davis, 1 13 Cal. an electrical plant a contractor. 337. 6 Hinckley v. Fields, etc., *LaGrill v. Mallard, 90 Cal. Co., 91 Cal. 136. 373- 7 Duff v. Hoffmann, 63 Pa. oRoebling's Sons' Co. v. St. 192; Schenck v. Uber, 81 Humboldt, etc., Co., 112 Cal. Pa. St 31 ; Pacific Mutual, etc., 288 compare, Salem v. Lane, Co. v. Fisher, 106 Cal. 224. etc., Co., 189 111. 593, holding 8 Chapman v. Faith, 18 Pa. one furnishing an engine for Super. Ct. 578; Lester v. 162 LAW OF ARCHITECTURE AND BUILDING 90. Various Statutory Provisions. In the case of the contractor, as in the case of the archi- tect, the special provisions of the statutes in each jurisdiction must be considered, in determining whether the services performed are such as are recognized as the proper basis for a lien. In Illinois, work done in ornamenting a house comes within the statute. 9 In California, under an act recognizing improvements as the basis of a lien, papering and decorating have been considered as constituting improvements. 10 In Massachusetts, the installing of a drying machine in a glue and chemical manufacturing plant has been construed as embodying merely slight changes, incidental to work on personal property, and as not therefore properly the basis of a lien. 11 91. Performance Must Be Proven. It is al- most self-evident that the contractor, if he is to place himself in a position where he may claim the protection of, or advantage accruing from, the statutory lien accorded him, must perform his contract, or show that he has been prevented from performing by the acts of the other party, or that the unperformed provisions of the contract have been waived. 12 Houston, 101 N. Carolina, 605 ; Statute of 1833 and refusing Bryan v. Whitford, 66 111. 33 lien. for erecting and repairing; 9 Drew v. Mason, 81 111. 498. Powell v. Nolan, 27 Washing- 10 La Grille v. Mallard, 90 ton 318; Haines v. Holland Cal. 373. (1898, Tenn. Ch. App.), 48 S. VL Curnew v. Lee, 143 Mass. W. 400; compare also Winder 105. v. Caldwell, 14 How. U. S. 12 Woolf v. Schaefer, 103 N. 434, decided under U. S. Y. A. D. 567, reversing 41 THE LIEN OF THE CONTRACTOR 163 92. Substantial Performance Sufficient Statement of the Rule. That performance of the contract which is considered as necessary under this rule has been construed, as between the owner and the principal contractor at least, to be a sub- stantial performance, and if the contract has been substantially performed, within the meaning of that term as interpreted by the courts, a lien may be enforced. 13 The rule has been well stated to be that "If there has been no wilful departure from the terms of the contract, or omission in essential parts, and the laborer has honestly and faithfully performed the con- tract in all its material and substantial features, he will not be held to have forfeited his right to remuneration by reason of mere technical, inadvertent and unimportant omissions or defects. The law imposes no such liability upon and exacts no such penalties of the mechanic." " Misc. N. Y. 640 ; Mahon v. 1S Ruigle v. Wallis Iron Guilfoyle, 18 N. Y. Supp. 93; Works, 149 N. Y. 439; D. A. Smith v. Ruggiero, 52 A. D. Tompkins Co. v. Monticello, (N. Y.) 382; Trust Co. v. etc., Co., 137 Fed. 625; Brandt Guigues, 76 N. J. Eq. 495; v. City of New York, no N. Y. Smith v. Coe, 2 Hilt (N. Y.) A. D. 396, affirmed 186 N. Y. 365, affirmed 29 N. Y. 666 ; May 599 ; Felgenhauer v. Haas, 123 v. Menton, 18 Misc. (N. Y.) A. D. (N. Y.) 75; Nesbit v. 737; Derr v. Kearney, 46 Misc. Braker, 104 A. D. (N. Y.) 393; (N. Y.) 148 ; Rochford v. Roch- Sinclair v. Tallmadge, 35 Barb, ford, 192 Mass. 231; Pritzlaff, (N. Y.) 602; Moore v. Dugan, etc., Co. v. Berghoefer, 103 179 Mass. 153; Bergfors v. Wis. 359; Bohem v. Seabury, Caron, 190 Mass. 168; Burke 141 Pa. St. 594; Morrison Co. v. Coyne, 188 Mass. 401; v. Williams, 200 Mass. 406; Sherry v. Madler, 123 Wis. CBurke v. Coyne, 188 Mass. 401 ; 621 ; Kane v. Stone Co., 39 Frohlich v. Klein, 160 Mich. Ohio St I. 142 ; Kane v. Stone Co., 39 " Allen J. in Sinclair v. Tall- Ohio St. i; Malbon v. Birney, madge, 35 Barb. (N. Y.) 602, II Wis. 107; Brydon v. Lutes, at p. 604. See also on interpre- 9 Manitoba 463. tation of substantial perform- 164 LAW OF ARCHITECTURE AND BUILDING 93. Effect of Delay. A delay by the con- tractor in carrying out the contract will not pre- vent him from enforcing his lien rights where the contract has been carried out, although late; but damages for the delay will be deducted from the contract price. 15 94. Limitation of Rule. The foregoing rule is subject to the qualification that where time is stipulated to be of the essence of the contract, that is to say, a fundamental term of the contract, a breach by the contractor of this fundamental pro- vision, by tardiness in the completion of the work, will prevent him enforcing his rights as a lienor. 16 95. Necessity of Architect's Approval. Where it is provided, as is so usually done, that the work of the contractor must be approved in due course by the architect, and that the certificate of the architect must be presented as a condition precedent to payment, the contractor can enforce no lien without either the presentation of the re- quired certificate, or proof of a proper excuse for not presenting it. 17 Where the plaintiff does not produce the certificate specified and relies upon proof that the certificate has been demanded and ance, Glacius v. Black, 50 N. Monticello Co., 137 Fed. 625. Y. 145; Otis Elevator Co. v. " Thomson-Starrett Co. v. Dusenbury, 47 Misc. (N. Y.) Brooklyn Hts. Realty Co., in 450; Holl v. Long, 34 Misc. N. Y. A. D. 358; Nesbit v. (N. Y.) i; Wollreich v. Pert- Braker, 104 N. Y. A. D. 393; retch, 4 N. Y. Supp. 326. Highton v. Dessau, 139 N. Y. 1B Benner v. Schmidt, 44 111. 607, affirming 19 N. Y. Sup. App. 304. 395; Bloominton Hotel Co. v. 18 D. A. Tompkins Co. v. Garthwait, 227 111. 613. THE LIEN OF THE CONTRACTOR 165 its delivery by the architect refused, the burden of proof is upon the plaintiff to establish these facts by a preponderance of evidence in his favor and to establish in the same way, and as part of his case, the fact that the certificate was unreasonably withheld. 18 It should be noted, also, that in New York it has been held, where the production of the archi- tect's certificate is made a condition precedent to the right of payment, not only that there can be no recovery unless the certificate be produced, or a good and sufficient excuse shown for its non-pro- duction, but, in addition, that no payment can be enforced under these circumstances unless there be an allegation in the complaint that the certificate has been secured, or facts set forth showing that it has been unreasonably withheld, and unless the pleading be sustained by proof upon the trial. 19 96. Municipal Contract Approval by City Department as Condition Precedent. In the case of a municipal contract where it is stipulated that the certificate of approval of a department of the city is a condition precedent to final payment, and the claim is made that the certificate has been un- reasonably withheld or refused, whether or not such withholding or refusal has been unreason- able or arbitrary is a question of fact, and should be left to the jury for determination. 20 In this connection it is perhaps interesting to note that "Nesbit v. Braker, 104 N. throp, 59 A. D. (N. Y.) 192. Y. A. D. 393. 20 N. Y. & N. H. Automatic 19 Weeks v. O'Brien, 141 N. Sprinkler Co. v. Andrews, 173 Y. 199; L'Hommedieu v. Win- N. Y. 25. i66 LAW OF ARCHITECTURE AND BUILDING Section 421 of the Greater New York Charter provides among other things that : "It shall be the duty of any borough president, or head of any department, having in charge any work, within five days after the acceptance of such work, to file with the comptroller a final certificate of the completion and acceptance thereof, signed by the chief engineer or head of his department. The filing of such certificate shall be presumptive evidence that such work has been completed according to contract." 97. Collusion Effect. Where the withhold- ing of the certificate is the result of collusion between the architect and the owner, the lien will be enforced. 21 98. Waiver of Condition by Owner. Inas- much as the production of the certificate is a con- dition specified for the protection of the owner, the latter may waive the condition if he choose to do so. 22 99. Certificate as Evidence of Performance. The certificate of the architect will support the lien claim where the contract specifies that the certificate shall be conclusive evidence of perform- ance, but this rule is subject to the qualification that it is operative only in cases where the certifi- cate is not only produced but is unimpeached. If it be provided, for instance, that the work to be done and materials to be furnished shall be of a 21 McDonald v. Patterson & 22 Hartley v. Murtha, 5 N. Co., 186 111. 381, affirming 84 Y. A. D. 408. 111. Apps. 326. THE LIEN OF THE CONTRACTOR 167 certain character and quality, and subject to ac- ceptance or rejection by the architect, his accept- ance will not in itself be sufficient to support the lien claim, where it is shown that the work and materials are not of such character and quality as to comply substantially with the provisions of the contract. 100. Corporations as Lienors. The mere fact that the contractor claiming the lien is a cor- poration, will ordinarily under the lien statutes make no difference, for the word "person" com- monly and widely used in the statutes in describ- ing those who are entitled to liens, has been construed by the courts, in the absence of other restrictive language, to include a corporation. 23 The New York courts have held further that where a foreign corporation delivers material which is used in work in New York a lien may be maintained by the corporation notwithstanding its foreign origin. 24 101. Effect of Fire. In the event of the de- struction of a building by fire where it has been provided that payment shall be made upon comple- tion and where the contract is not separable, but refers to the work as a whole, a lien may be main- tained, provided the contract contain a provision 28 Gaskell v. Beard, 58 Hun. v. Rome Brick Co., 98 Ala. (N. Y.) 101 ; Loudon v. Cole- 409; Pagan v. Boyle, etc., Co., man, 59 Ga. 653. 65 Texas 324; Huttig Bros., 24 N. Y., etc., Terra Cotta Co. etc., Co. v. Denny Hotel Co., v. Williams, 102 N. Y. A. D. 6 Wash. 122. I ; and to same effect see Cook i68 LAW OF ARCHITECTURE AND BUILDING that the risk of the destruction of the building by fire is upon the owner. 25 In the absence of such a provision however, the lien will not be en- forcible. 26 102. Change in Ownership. Where a lien has once attached, a mere change in ownership in the building during the progress of the work does not constitute a new commencement of building operations and does not affect the lien already attached. 27 103. Death of Owner. In the event of the death of the owner, the death operates, in some jurisdictions, to defeat the lien right, 28 while in others the lien may still be enforced. 29 104. General Assignment. The right to a lien has been held to be unaffected by an assign- ment for the benefit of creditors where the assign- ment is subsequent to the filing of the lien ; 30 and in Ohio, even where the assignment has preceded the filing of the lien the continuing validity of the latter has been recognized. 31 105. Consent of the Owner. The facts al- ready noted under another heading 32 in regard to 25 Sontag v. Brennan, 75 111. Appeal, 102 Pa. St. 218. 279. 29 Robins v. Bunn, 34 N. J. 26 Wigton's Appeal, 28 Pa. L. 322 ; Holbrook v. Ives, 44 St 161. Ohio St. 516; Richardson v. 27 Pennock v. Hooper, 5 Hickman, 32 Ark. 406. Rawle (Pa.) 290; Gordon v. 30 Steger v. Arctic Refrig- Torrey, 15 N. J. Eq. 112. crating Co., 89 Tenn. 453. 28 Tubridy v. Wright, 144 N. 31 Hart v. Globe Iron Works, Y. 519, affirming 7 Misc. N. Y. 37 Ohio St. 75 compare, Noyes 403; Crystal v. Flannelly, 2 E. v. Burton, 29 Barb. N. Y. 631. D. Smith N. Y. 583 ; Hoffs 32 See 88, p. 157. THE LIEN OF THE CONTRACTOR 169 the necessity and effect of the owner's consent are applicable also to the lien of the contractor or sub- contractor, or other similar lienors. CHAPTER IV THE LIEN OF THE SUBCONTRACTOR 1 06. Nature of Lien. The natural effect of the extension of the lien doctrine has been to pro- tect the subcontractor as well as the contractor, and in many cases the subcontractor has been given a direct or subordinate lien by statute. 1 107. The Pennsylvania Doctrine. The Pennsylvania courts especially have led in the movement to give the subcontractor a direct lien on the property irrespective of the rights of the contractor. 2 108. The New York Doctrine. In New York State the courts have not adopted the idea of a direct lien for the subcontractor, but have 1 Pendleburg v. Meade, I E. statute) that a lien in favor of D. Smith N. Y. 728; Perry v. a subcontractor for labor is in- Potashinski, 169 Mass. 351 ; elusive of the labor of his Merrigan v. English, 9 Mon. employees, but not of materials 113; Ballon v. Black, 21 Neb. furnished by him; Knowlton v. 131; Berger v. Turnblad, 98 Ellis, 12 Phil. (Pa.) 396; Hut- Minn. 163; Vaughan v. Ford, tig, etc., Co. v. Denny Hotel 162 Mich. 37; Green v. Wil- Co., 6 Washington 122. liams, 92 Tenn. 220 ; Central 2 Linden Steel Co. v. Rough Trust Co. v. Richmond, etc., Run Manufacturing Co., 158 Co., 68 Fed. 90; Crane Co. v. Pa. St. 238 ; Willey v. Topping, Hanley, etc, Co., 53 Mo. Ap- 146 Pa. St. 427; White v. peals 540; Seaman v. Bie- Miller, 18 Pa. St. 52; but com- mann, 108 Wis. 365; Hatch v. pare Schroeder v. Galland, 134 Fansher, 15 R. I. 459, also hold- Pa. St. 277. ing (under the Rhode Island 170 THE LIEN OF THE SUBCONTRACTOR 171 given him a lien based upon the doctrine of, or more exactly speaking in the nature of, subroga- tion, and, as a condition precedent to awarding any lien to the subcontractor, require that the con- tractor himself shall be entitled to a lien, and that in any event there shall be monies due from the owner to the contractor to which the subcon- tractor may be subrogated. 3 Under the subrogation doctrine as exemplified in the New York cases, the owner is afforded a protection which is not given him under the doc- trine of a direct lien for the subcontractor as ex- emplified in the Pennsylvania cases. Thus, under the New York doctrine, where the principal con- tractor fails to complete, while the right of the subcontractor to his lien is not affected, the extent to which the lien can be enforced is very materially affected, in that, under these circumstances, the New York courts will allow the subcontractor to enforce his lien to the extent merely of the amount due to the contractor from the owner at the time when the lien is filed, or at the time when the sub- contractor gives proper notice of his claim. 4 Applying the New York doctrine to the usual provision in a building contract which provides 8 LaPasta v. Weil, 20 Misc. rigan v. English, 9 Mon. 113; (N. Y.) 554, reversing 20 Hunter v. Truckee Lodge, etc., Misc. (N. Y.) 10 ; Kirschner 14 Nev. 24. v. Mahoney, 96 N. Y. Supp. * Foshay v. Robinson, 16 N. 195 ; and see, contrasting Penn- Y. Supp. 817, affirmed 137 N. sylvania doctrine of direct Y. 134; and to same effect see lien and New York doctrine Wright v. Pohls, 83 Wis. 560; of subrogation, Prince v. Neal compare N. J. Steel, etc., Co. v. Millard Co., 124 Ga. 892; Mer- Robinson, 33 Misc. (N. Y.) 361. 172 LAW OF ARCHITECTURE AND BUILDING that payment shall be made in installments, on ac- count of the total amount, and that the balance of the stipulated price shall be paid upon completion, the effect is to prevent the subcontractor from en- forcing a lien against the balance retained under such a provision, in the event that the contractor fails to complete. 5 If the owner, however, elects to come in and complete the work under a con- tract provision allowing him so to do, and does this, shortly before an installment is to fall due to the contractor, a subcontractor or material man may enforce a lien to the extent of the amount of the installment so to become due, less such amount as may be necessary to complete the work to the point when the installment would become due, less also such sum as may be required to make good de- fective work; and this rule holds true despite the fact that there may be nothing due to the con- tractor, on the completion of the building, by rea- son of his failure to complete. 6 109. Failure of Contractor to Complete. Work done by the subcontractor for the owner, after the abandonment of the contract by the con- tractor, gives to the subcontractor the right to a lien for the full amount of the value of such work, this being a new undertaking as between himself and the owner, and entirely separate from the work done by him theretofore under his contract 5 Kelly v. Bloomingdale, 19 8 Foshay v. Robinson, 16 N. N. Y. Supp. 126, affirmed, 139 Y. Supp. 817, affirmed 137 N. N. Y. 343; Brainard v. County Y. 134. of Kings, 84 Hun. N. Y. 290, affirmed 155 N. Y. 538. THE LIEN OF THE SUBCONTRACTOR 173 with the main contractor. 7 If the breach of the contract is on the part of the owner as distin- guished from the contractor, and the latter's fail- ure to complete results from such a condition, the Hen of the subcontractor may be enforced to the extent of such part of the contract price as may remain unpaid. 8 no. Rights of Subcontractor as Affected by Contract. There is a diversity of opinion among the courts of the different States as to the validity and effect of a provision in a building contract providing that the subcontractor shall not acquire a lien, or providing that the contractor may not, without the owner's consent, sublet his contract. In some jurisdictions it has been held that a lien, being purely statutory, and provided solely by the decree of the Legislature, cannot be interfered with by the provisions of the building contract, and that the subcontractor is accordingly entitled to his lien, irrespective of any covenant which the contractor may have made in this connection with the owner, 9 while in other jurisdictions the courts have considered that the subcontractor is charge- 7 Delray, etc., Co. v. Keohone, vision that the contractor may 132 Mich. 17. not sublet the contract and de- 8 Person v. Stoll, 72 N. Y. spite the fact that the owner A. D. 141, affirmed 174 N. Y. has not given his consent to 548. the making of the contract be- 9 Atlantic, etc., Co. v. Don- tween the contractor and the nelly, 59 N. J. L. 48; see also subcontractor, see Wahlstrom Huttig, etc., Co. v. Denny v. Trulson, 165 Mass. 429; Hotel Co., 6 Washington 122 ; Perry v. Potashinski, 169 Mass. and that a subcontractor is en- 351. titled to his lien despite a pro- 174 LAW OF ARCHITECTURE AND BUILDING able with notice of the provisions of the building contract and is, accordingly, barred from his lien under such circumstances. 10 in. Employees and Material Men of Sub- contractor. It was a very general rule in the earlier stages of the development of the lien law that the employee of a subcontractor was not en- titled to any lien rights. 11 The same rule was likewise applied to those furnishing materials, 12 or furnishing labor to the subcontractor. 13 The stringency of these earlier decisions has been largely modified, however, by statutes and decisions providing in substance for liens in favor of those performing labor or furnishing materials for subcontractors. 14 10 Dersheimer v. Maloney, 143 Pa. St. 532; Schroeder v. Galland, 134 Pa. St. 277; Sea- man v. Biemann, 108 Wis. 365. al Central Trust Co. v. Rich- mond, etc., Co., 54 Fed. 723; Harlan v. Rand, 27 Pa. St. 511 ; Culver v. Attwood, 170 111. 432; Morrison v. Whaley, 16 R. I. 715; Farmer v. St. Croix, etc., Co., 117 Wis. 76. 12 Central Trust Co. v. Rich- mond, etc., Co., 54 Fed. 723; Wood v. Donaldson, 17 Wend. (N. Y.) 550, affirmed 22 Wend. 395; Heroy v. Hendricks, 4 E. D. Smith (N. Y.) 768; Carlisle v. Knapp, 51 N. J. L. 329; Duff v. Hoffmann, 63 Pa. St. 191 ; Harbeck v. Southwell, 18 Wis. 418; Stephens v. United R. R., etc., Co., 29 Ohio St. 227. 18 Central Trust Co. v. Rich- mond, etc., Co., 54 Fed. 723; Wood v. Donaldson, 17 Wend. (N. Y.) 550, affirmed 22 Wend. 395 ; Cairo, etc., Co. v. Watson, 85 HI- 53i; Vandenberg v. P. T. Walton, etc., Co., 19 Okla, 169. 14 Vogel v. Luitwieler, 52 Hun. (N. Y.) 184; Brainard v. County of Kings, 84 Hun. (N. Y.) 290, affirmed 155 N. Y. 538; Garrison v. Borio, 61 N. J. Eq. 236, 47 Atl. 1060 ; Gardner, etc., Co. v. N. Y. Central, etc., Co., 72 N. J. L. 257; distinguishing Carlisle v. Knapp, 51 N. J. L. 329; Snyder v. N. Y. Central, etc., Co., 72 N. J. L. 262; Smith v. Neubaur, 144 Ind. 95 ; Bar- low Bros. Co. v. Gaffney, 76 Conn. 107; Macomber v. Bige- low, 126 Cal. 9 ; Pere Marquette R. Co. v. Baertz, 36 Ind. Apps. 408. THE LIEN OF THE SUBCONTRACTOR 175 112. Necessity and Effect of Filing or Re- cording Contract. There are statutory provi- sions in a number of the States with reference to the filing or recording of the contract between the owner and the contractor, and while discussion of these might properly be included under the sepa- rate discussion to be given to the construction contract, their effect on the lien rights of the parties is such that it seems preferable that they be considered in the present connection. In some States these statutes have taken the form of providing that no lien can be predicated upon the contract unless the latter is in writing and recorded ; 15 while in others only contracts in excess of specified amounts need be so recorded. 16 In California the rule has been modified, by a de- termination that a filing of a memorandum of the contract, embracing copies of substantially all topics required to be filed by statute, is sufficient. 17 In New Jersey a very different situation is found in that, under the New Jersey Laws, in the event that the contract is in writing and is filed, with the specifications, with the clerk of the county where the work is done, at or before the time when the building is begun, the liability of the owner is thereby limited to the contractor only, and does not extend to those performing services or labor "McClallan v. Smith, II ie Smith v. Bradbury, 148 Cush. (Mass.) 238; Conner v. Cal. 41; Whitla v. Taylor, 6 Lewis, 16 Me. 268; laege v. La. Ann. 480. Bossieux, 15 Grat (Va.) 83; " Blinn Lumber Co. v. compare, Nolte v. His Credi- Walker, 129 Cal. 62. tors, 6 Mart. (N. S.) La. 168. 176 LAW OF ARCHITECTURE AND BUILDING or providing materials for the contractor. 18 It should not be understood from this rule, however, that the subcontractor or material man is helpless by reason thereof. It prevents him merely from enforcing a lien under the circumstances noted, but it does not prevent him securing a very definite degree of protection by the filing, under the New Jersey law, of what is commonly known as a "Stop Notice," which is, in substance, a notice to the owner of his claim. The effect of this is to place the owner in a position where the payment by him of additional monies to the contractor will be at his peril in view of the notice which he has re- ceived. As a practical matter this course will usually result in the owner's refusing to pay to the contractor such balance as may be due him and withholding it from him, subject to proper proof of the claims of those subcontractors from whom notices have been received. Formerly in New Jersey the filing of specifica- tions or copies thereof with the contract was not required in every instance. It would appear, however, 19 that this former rule dispensing with the filing of the specifications was limited largely to those cases where all the work was to be done, and the materials furnished, by the contractor, 18 English v. Warren, 65 N. Budd v. Lucky, 28 N. J. L. J. Eq. 30; La Foucherie v. 484; Ayres v. Revere, 25 N. J. Knutzen, 58 N. J. L. 234; L. 474; compare, Glading v. Freedman v. Sandknop, 53 N. Frick, 88 Pa. St. 460. J. Eq. 243 ; Weaver v. Atl., 19 LaFoucherie v. Knutzen, etc., Co., 57 N. J. Eq. 547 ; Wil- 58 N. J. L. 234, supra. lets v. Earl, 53 N. J. L. 270; THE LIEN OF THE SUBCONTRACTOR 177 himself one of the parties to the agreement, and that, even formerly, the necessity existed of filing these specifications in the event that the contract referred to the specifications for the details of the work to be done, or was itself so incomplete that an examination of the specifications became absolutely necessary for a proper understanding of the arrangements which had been made. 20 The filing of the specifications or a duplicate or copy thereof, according to whether the original contract or a duplicate or copy thereof is filed, is, under the present New Jersey statutes, however, mandato'ry if the owner is to be protected. 21 113. Priority of Claims. In concluding the present discussion of mechanics' liens it should be again noted, and remembered always, that in every instance the only safe course to follow is to refer directly to the statutes of the particular State in which it is desired to enforce the lien. Only in this way can a definite and adequate un- derstanding be reached of what rule is to be ap- plied under the special circumstances existing, and only so can the various elements of the extent and time of accrual of the lien, the property affected thereby, and the rights of priority of respective lienors, be properly determined. Thus, in New York, section thirteen of the lien law gives to those who have performed labor and furnished materials, priority over the general creditors of 20 English v. Warren, 65 N. 21 English v. Warren, 65 N. J. Eq. 30; Weaver v. Atl. Roof- J. Eq. 30, supra. ing Co., 57 N. J. Eq. 547. 178 LAW OF ARCHITECTURE AND BUILDING an insolvent owner or contractor, and this section, in connection with sections twenty-five and fifty- six thereof, provides for the priority of day labor- ers over contractors and subcontractors, irrespec- tive of when their liens are filed, and likewise of a material man over such contractors or subcon- tractors. 22 In New York, too, laborers and ma- terial men are given priority, among themselves, according to the date of the filing of their re- spective liens. The priority of lienors in other jurisdictions will naturally vary, to a greater or less extent, in accordance with the peculiar doctrines or condi- tions which there exist, and it will not be amiss to emphasize again the fact that, in all instances, the decisions on the various phases of the lien law are based upon the special provisions of the particular statutes involved, and that only by a careful ex- amination of the statutes in force when and where a case arises can the exact rights of the parties be properly weighed and determined. 22 See Herman et al. v. City Proctor, etc., Co., 62 Misc. (N. of New York, 130 N. Y. A. D. Y.) 129. 531 ; Hedden Const. Co. v. PART IV THE ARCHITECT AND THE CON- TRACTORCONCLUSION CHAPTER I THE ARCHITECT AND THE CONTRACTOR 114. Rights and Liabilities in General. The relations in general of the architect and the contractor, and their mutual rights and liabilities, closely inter-related as they are with the other phases of the subject, have been already con- sidered in some detail. It is proper to note again, however, that while the architect's primary duty is to the owner, his client, he must never- theless, and especially in his capacity as ar- bitrator, be careful that his decisions and the course pursued by him are consistent with fair dealing to the contractor as well. In the matter of the issuance of certificates he should exercise special care, for in this detail the builder is pri- marily within the power of the architect, under the provisions of the ordinary building contract of to-day. For an improper refusal by the architect to issue a certificate, the issuance of which is es- sential to the proper protection and enforcement of the rights of the builder, the latter may, it has been indicated by the British courts, hold the ar- chitect liable for the damages sustained by reason of his refusal. 1 i Ludbrook v. Barrett, 46 L. J. C. P. 708. 181 182 LAW OF ARCHITECTURE AND BUILDING 115. Right to Plans. With respect to the plans, the builder is not in a position to make the claim of ownership which can be set up by the owner, but at the same time, it seems that there is recognized a right in the builder to use and to hold the plans in his possession, during the time that the building is in course of erection. The courts have gone so far, in one jurisdiction at least, as to hold, under this doctrine, that the builder may maintain an action in trespass against the archi- tect, where the latter has taken the plans from the possession of the builder, without his consent and prior to the completion of the work ; and that the taking of the plans by the architect under these circumstances, if done secretly and with felonious intent to convert them to the architect's own uses, and to deprive the builder of the use of them, is ground for a prosecution for larceny. 2 It will be observed that in the case last cited, the decision on the point of larceny is predicated on the assump- tion that the plans are taken with felonious intent, which element being assumed or shown naturally leads to the conclusion reached, but the case is in- teresting nevertheless as illustrative of the fact that care should be exercised not to assume too boldly an ownership of or control over the plans, under any and all circumstances. * Lunsford v. Dietrich, 86 Ala. 250. CHAPTER II CONCLUSION 1 1 6. Summary and Final Suggestions. In closing, it may be well to draw attention by way of brief summary to some of the more important of the points referred to in the foregoing pages, and especially to those points of particular im- portance to the proper protection of the architect and to the enforcement of his rights. If the architect is to practice his profession, and deal with his clients, with a minimum of legal con- troversy or loss, he must, in the first place, see that his contract with his employer is as definite in all of its terms and provisions as it is possible to make it. If his employment is merely for the purpose of preparing preliminary drawings, he should take care that nothing is said from which it can be assumed that he waives his right to payment for the work done ; and if possible it should be ex- pressly understood that payment is expected. On the points of agency and extras, especially, the contract and understanding should be full and un- equivocal, and as to both of these points the archi- tect should exercise the greatest care in the as- sumption of any authority not expressly and clearly provided for. He should remember that the building contract is, as to many of its provi- sions, drawn for the primary protection of his 183 184 LAW OF ARCHITECTURE AND BUILDING client and that, without the consent of the client, he may not safely undertake to waive, or allow the builder to believe that he can waive or dis- pense with, any of the stipulations which have been made for his client's benefit, such as those requiring written authorization for extra work, the proper completion of work before a certificate is issued therefor, and the presentation of the certificate as a condition precedent to the right to enforce payment. Not only should the architect make sure that the terms of the contract between his client and him- self are clearly understood, in order to avoid the many difficulties which it has been seen an am- biguity or careless wording of the contract may mean to both of them, but he should, in addition, be careful to see that the contract is properly exe- cuted and legally binding. This caution applies particularly to those cases where the client is an association or corporation, or one acting in a rep- resentative as distinguished from an individual capacity. It of ttimes happens that a contract en- tered into by or in behalf of a corporation which, to the ordinary layman, would seem to be unques- tionably binding on the corporation, is, in fact, not so at all, for the reason that some requisite ele- ment or formality well recognized in law, but not of such a nature as to be readily realized by the architect, has been omitted, thus rendering the contract void as against the corporation. In dealing with corporations, and especially with municipal corporations, therefore, the archi- CONCLUSION 185 tect should satisfy himself that all proper legal formalities have been complied with, that the con- tract has been executed by the proper officer and is in the proper form, that due authority has been granted by the directors or the city department or governing bodies of the corporation, as the case may be, wherever such authority is necessary to render the contract binding upon the client, and that the contract is in general, and in all respects, so drawn and so executed that its validity will be upheld, and its terms enforced. Thus, also, in dealing with trustees or executors or those acting in any representative capacity, in matters involv- ing large expense or compensation of real im- portance, it will not be going too far for the archi- tect to secure, if possible, certified copies of Let- ters Testamentary and similar documents and, in the case of corporations, copies of directors' min- utes, of by-laws or of other papers whereby the authority or other elements upon which the valid- ity of the contract depends may be clearly deter- mined. The architect must remember, too, that while the law requires nothing unusual in the way of skill and attention in the supervision of the work, on the other hand, it does require that there shall be present a reasonable degree of each ; and, as to supervision, he should remember that in order to lay a clear and proper basis for the protection of his rights, under the mechanic's lien statutes in the various jurisdictions, he should, if possible, see that the element of supervision of the work, 186 LAW OF ARCHITECTURE AND BUILDING even if to a very slight extent, is present, to com- ply with the rule pursuant to which so many of the States have granted and enforced a lien, where this element has been established, but re- fused relief where it has been absent. Finally, in the matter of plans, if it be desired that title thereto remain in the architect, care should be taken to see that a specific stipulation to this effect is included in the contract or agree- ment between the architect and the client. It is of equal importance that the owner and the builder be vigilant to insure that the construction contract between them be clearly understood, and without any latent ambiguity ; that any provisions for liquidated damages or extras, especially, be so phrased and determined upon that there can be no doubt in the mind of any one of their meaning, or of the intentions of the parties to the contract ; that neither of the parties give to the other any cause for complaint, on the ground of unfair treatment or collusion with the architect, or with other parties ; and that any provisions for arbitra- tion in the contract be so drawn that they can not be construed to usurp in any way the jurisdiction or proper province of the courts. The builder, before he institutes any action against the owner for the recovery of the contract price, should be very sure that he himself has com- plied with all the terms of the agreement between them ; that he is not estopped from recovering the amount which he claims to be due him by a failure to secure the architect's certificate, or to offer a CONCLUSION 187 proper excuse for its non-production ; and that the contract has been performed by him in all sub- stantial particulars, or, in the event that it has not been so performed by him, that performance has been waived or prevented by the owner. The owner, on the other hand, in withholding any pay- ment from the builder, or in attempting to ter- minate the contract and complete the work, should be satisfied, before he acts, that, as a matter of law, the work has not been properly performed, and that the builder is legally in default; other- wise, by proceeding against the builder or by ter- minating and completing the contract himself, he may thereby incur a personal liability and un- wittingly prepare the way for an action against him by the builder for damages. There will be very few situations where atten- tion to most or all of the points noted cannot be given at the expense of a very reasonable degree of attention and time, and there can be no question that time and attention so expended will in the prevention of misunderstanding, legal difficulties, disputes between the parties, and the expense con- sequent upon all of these, repay the architect, the owner and the builder in ample measure, and assure to them a feeling and a certainty of defi- niteness and safety in their mutual dealings, which would otherwise be lacking in a marked de- gree. APPENDICES APPENDIX A DECISIONS FOR REFERENCE READING It is believed that the original text of the deci- sions in a number of leading cases dealing gener- ally with the duties, rights and liabilities of the architect, owner and contractor, especially the former, will be found of interest. The cases following are cited in the text, but a reading of the decisions in their original form and substantial entirety will be helpful, as supplement- ing and emphasizing the points already made and in connection with which they have been cited. The decisions selected deal with the general duties of and relationship between the architect, owner and builder, the degree of performance and character of work required of the contractor, the extent of the authority of the architect as agent of the owner, the effect of provisions for superin- tendence and approval by the architect, the lia- bility of the architect for damage resulting from his negligence, the right of the architect to com- pensation, the measure of his compensation and his rights as a lienor. COOMBS v. BEEDE, (89 Me., 187; 36 Atlantic Reporter, 104.) PETERS, C. J. It is not questioned that the plaintiff, a professional architect, was employed by the defendant to 191 192 LAW OF ARCHITECTURE AND BUILDING prepare plans and specifications for a house which the defendant intended to have built for himself in the city of Lewiston. On the trial of this action, brought by the plaintiff to recover compensation for services ren- dered by him in such employment, the defendant sought to establish that, although certain services were rendered by the plaintiff, such services were not beneficial to him, for the reason that they were performed in a manner con- trary to his express direction and wishes. In an examination of the merits of the controversy between these parties, we must bear in mind that the plaintiff was not a contractor who had entered into an agreement to construct a house for the defendant, but was merely an agent of the defendant to assist him in building one. The responsibility resting on an architect is essentially the same as that which rests upon the law- yer to his client, or upon the physician to his patient, or which rests upon any one to another where such per- son pretends to possess some skill and ability in some special employment, and offers his services to the public on account of his fitness to act in the line of business for which he may be employed. The undertaking of an architect implies that he possesses skill and ability, in- cluding taste, sufficient to enable him to perform the re- quired services at least ordinarily and reasonably well ; and that he will exercise and apply, in the given case, his skill and ability, his judgment and taste, reasonably and without neglect. But the undertaking does not im- ply or warrant a satisfactory result. It will be enough that any failure shall not be by the fault of the archi- tect. There is no implied promise that miscalculations may not occur. An error of judgment is not necessarily evidence of a want of skill or care, for mistakes and mis- calculations are incident to all the business of life. In a case at nisi prius in one of our counties, where a controversy arose very similar to the present, the de- fendant there contending that the plans called for a DECISIONS FOR REFERENCE READING 193 too expensive house, and that there had been a departure from the instructions given by the employer, Haskell, J., gave a ruling, which we adopt as an acceptable state- ment of the law here, as follows: "The plaintiffs con- tinued in the execution of the plans. They procured the details, and perfected the entire set of plans. For some reason those plans were rejected by the defendants. The plaintiffs say that it was because they did not give the house sufficient size and capacity and arrangement to suit them, and that they preferred an entirely different house, a house of different dimensions and different architectural proportions. The defendants say it was be- cause they found the plans impracticable, and that the arrangement of the plans called for so great an outlay that it rendered it too expensive for them to be carried out and adopted ; and they say that that was on account of the mistake of the plaintiffs in not properly advis- ing them and in deceiving them as to the practicability of the plans. "Now, gentlemen, in determining the rights of the parties, it is well to consider what the legal duty of the plaintiffs was to the defendants. The architect is skilled in the art of building houses. Those who employ him have a right to his best judgment, to his skill, to his ad- vice, to consultations with him, and to his absolute fidel- ity and good faith, and, when the archiect has contributed these things to the person who employs him, his duty has been fulfilled." In the case at bar the defendant, not relying on any charge against the plaintiff of fraud or negligence, set up at the trial that there was a special promise that the plans should not call for a house to cost exceeding $2,500, and contended that, inasmuch as the plans called for a more expensive house than that sum would build, noth- ing was recoverable for plaintiff's services. And in re- lation to such contention the presiding justice gave the following instruction : "Well, if that is true, if Mr. 194 LAW OF ARCHITECTURE AND BUILDING Coombs was explicitly told, in addition to the other things, that the building he was designing must not cost over $2,500; that he was to make plans and specifica- tions for a building to cost not over that, why, then, Mr. Coombs, the plaintiff, should have either made plans accordingly, or frankly told Mr. Beede that he could not do it, and declined to do it. If he undertook to make plans with that restriction made to him specifically, why, then, he must do it before he can recover any pay." We think this instruction was misleading, and with- out evidence upon which it could be reasonably based. It punishes the plaintiff for what might be merely an honest mistake or miscalculation. It leaves wholly out of consideration the elements of care and good faith.- It does not even require that the plaintiff bound himself to the agreement set up by the defendant. The ruling implies a guaranty or warranty, when none was testified to or really pretended. Of course, it would be too much to say that parties could not make such a shadowy contract as the defense contends for, but it would be so strange and unusual a thing to do, that clear and convincing evidence should be required to prove it. And the testimony exhibits none such to our minds. Skipping the testimony of the defendant as less adroit and less spirited than that of his wife, who was much the more active of the two in the transaction, we incorporate her statement here, as follows : "Q. Won't you state to the jury the conversation and what took place ? "A. They had some talk about the fifteen hundred dollar cottage that they had been talking about previously, and conversation was general with regard to the fifteen hundred dollar cottage ; and something was said I think I spoke myself first about putting on the other story; spoke about its being better economy. Mr. Coombs said : 'Yes, if we studied economy, it certainly was economy DECISIONS FOR REFERENCE READING 195 to build a double tenement;' and Mr. Beede asked him what it would cost extra to put on the other story, and make a double tenement. He said he thought one thou- sand dollars. Then Mr. Beede said: 'Well, perhaps you can tell Mr. Coombs something about what kind of a house you want.' I said: 'I don't know what we could have for that money as well as he does. He under- stands that better than I. But one thing, Mr. Coombs, I don't want it to exceed the twenty-five hundred dollars, and I would rather you would cut it down to twenty- two. Don't you think you could?' He figured a mo- ment, and said he hardly thought we could, including the plumbing, but for twenty-five hundred dollars we could build a house complete. Mr. Beede said if he could make plans for a house to be built, not exceeding twenty- five hundred dollars, he might go ahead, and Mr. Coombs said he would do so, and he would send me up a sketch of the ground floor, to show me what I could have for size. "Q. Did he do so? "A. He did. He told me I might change over what- ever I pleased. Something about the sink, I believe, I wanted differently. I told him that the arrangement of the rooms was all right, I guessed. "Q. Now to come to the next conversation you had with him. "A. Then, after I carried that sketch down he sent me up a little sketch of what the elevation would be, and I looked that over, and I thought it was rather more elaborate than what I expected for twenty-five hundred dollars, and talked with some of my friends about it, and they seemed to think the same. The piazza., I spoke of that, and they said they should judge that piazza would cost two hundred and fifty dollars. I went down and talked with Mr. Coombs. Told him that I felt that it was a little extravagant. He said he guessed not ; but I thought he felt as though it would perhaps overrun 196 LAW OF ARCHITECTURE AND BUILDING twenty-five hundred dollars, and asked him, 'What do you think such a house ought to cost ?' and he said, 'Well, possibly three thousand dollars.' I said, 'We can't do that; we want a twenty-five hundred dollar house and must cut this down/ and he said, 'You don't want to spoil your house for a few hundred dollars.' I said, 'We are willing to have it a little plainer, rather than put in more money.' He said, 'Well, just as you say. I will cut that piazza down, make less posts, take off the fancy work around the rail, and so forth, and cut it down.' And he did so on the final sketches." By this statement it does not appear that the plaintiff was to prepare plans for any particular kind of house to cost $2,500, excepting that it was to be a two-tene- ment house, with one tenement over the other. Could not the plaintiff have planned a house answering this description which would not have cost that sum, or even half that sum, if allowed to do so? But the difficulty was that the defendant's wife not only wanted the ex- penditure not to exceed $2,500, but she wanted, at the same time, a house worth much more than that sum, and the architect was trying in good faith to accomplish the desired result as best he could. After the plaintiff had engaged to make the plans, and not before, the de- fendant calls on his wife, according to her testimony, to inform the plaintiff what kind of a house she wanted. Was it expected that he had promised to secure to her a house to her liking for $2,500, irrespective of actual cost or worth, and that he was agreeing to expend his services gratuitously if he did not succeed in doing so? We see nothing even in the defendant's side of the case justifying such a position. The plaintiff certainly could have reduced the cost upon the plans, and have earned his compensation, if the wife had permitted him to do so. The plaintiff gives a different version of the transac- tion, denying that any particular limit was fixed within which he was required to bring the cost of the house, DECISIONS FOR REFERENCE READING 197 other than that the wife desired to get as much of a house as she could for as small a price as possible, and he did all he could to assist her in her ideas. We have no doubt ourselves that there were talks about $2,500, as a proximate, but not conclusive, price, and that there were no rigorous or unalterable instructions or conditions about it. The plaintiff says that, after the plans were first completed, the wife required expensive alterations to be made in them, and, while she does not deny the fact, she is not willing to admit that she remembers it. The bids which came in after the plans were adver- tised were disappointing, there being but four in all, and ranging in amount from $3,300 to $4,400, showing the moral impossibility of an architect being able to fix pre- cisely the cost of any building if the cost is to be meas- ured in any such capricious way as by the bids of con- tractors. It was at an unfavorable time of the year, when the contractors had on hand all the work they could do, and still the plaintiff, by his perseverance, virtually obtained afterwards a bid for $3,100, which the defend- ant refused to accept, nor would he or his wife consent to cut down the plans so as to obtain a bid within the price desired ; and so the plaintiff advised the wife to postpone the matter until spring, when the conditions would be more favorable, and she frankly accepted the advice. There was, however, no waiting till spring before the defendant had his house built. He says he was informed by several persons that he would not be obliged to pay for the plans unless he used them, and he concluded to buy his materials and hire the labor by the day. His wife had become sufficiently posted, by her experience with the plaintiff and remembrance of his work, to enable her to make sketches of what she wanted, and so she, with the assistance of the carpenter in her service, acted as architect herself ; and the defendant, during the same fall and winter, erected a house and stable on their lot at a cost of over $3,500. The wife says that the house ig8 LAW OF ARCHITECTURE AND BUILDING built by her "was brought to the same degree of comple- tion that a house would have been by his (plaintiff's) specifications for little less than $2,700." So that plain- tiff's calculations, tested by actual cost instead of by con- tractor's bids, were less than $200 of variance from the standard which the defendant and his wife pretend was prescribed for him by them. We can perceive no ground upon which, as the testi- mony stands, the verdict could have been rightfully ren- dered. Even if the defendant's version of the facts be true, then the undertaking of the plaintiff was to make plans for a house to cost $2,500, and no more; and if, acting in good faith, he exercised his skill and ability in an endeavor to bring about that result, that is all that could be expected or required of him; and no defense is established against his claim even if he failed in his attempt. But if the house designed by him could be built for less than $2,700, it could hardly be called a failure, especially in view of the interferences on the part of the defendant's wife ; nor a failure if the plaintiff could have so altered his plans as to reduce the house in price, and it seems to us preposterous to say that he could not ; and he was willing to make alterations, and the de- fendant or his wife would not consent thereto. Motion sustained. GLACIUS v. BLACK, (50 N. Y. 145.) CHURCH, Ch. J. 147: This is an action upon a claim filed under the mechanic's lien law. The contrac- tors are builders, and contracted to make certain altera- tions and repairs upon the defendant's house for $1,326; one-half to be paid when the lath were on, and the bal- ance when the work was done completely and accepted. The work consisted principally of taking off an old peak roof and substituting a French or Mansard roof and fin- DECISIONS FOR REFERENCE READING 199 ishing off the upper story, and making other repairs in the interior of the house. The case was tried before a referee, and is very voluminous. . . . The referee found for the plaintiffs the whole amount of the claim, less twenty-five dollars, which he found as damages for de- fective work and materials. The findings of fact, if supported by any evidence, are conclusive upon this Court, and we can only deal with the legal questions involved. A reference to some gen- eral principles of law will aid in elucidating the con- trolling points in the case. It is well settled in this State that where a party has entered into a contract to per- form work and furnish materials of a specified character, and the other party agrees to pay for the same upon the performance of the contract, although the work may be performed and materials furnished, yet, if not done in the manner stipulated, no action will lie for compensa- tion. When performance is a condition of payment the former must be shown to entitle a party to recover un- less it has been waived or released. The case of Smith v. Brady (17 N. Y., 173), reviewing the principal au- thorities on the subject, is full and explicit on this point. This is a general rule, applying to contracts of this char- acter as well as others. As was said in the above case, "There is, in a just view of the question, no hardship in requiring builders to perform their contracts in order to entitle themselves to payment where the employer has agreed to pay only on that condition." As, however, this class of contracts embrace many particulars which it is difficult, if not impracticable, to comply with, with en- tire exactness, the apparent rigor of the general rule has been so far relaxed as that a substantial compliance will be deemed sufficient. As was properly expressed by Allen, J., in Sinclair v. Talmadge (35 Barb., 602), "If there has been no willful departure from the terms of the contract, or omission in essential points, and the la- borer has honestly and faithfully performed the contract 200 LAW OF ARCHITECTURE AND BUILDING in all its material and substantial particulars, he will not be held to have forfeited his right to remuneration by reason of mere technical, inadvertent or unimportant omissions or defects. The law imposes no such liability, and enforces no such penalty." The question in each case will, of course, be an open one, where defects exist, whether they are substantial or technical and unimpor- tant. This is a question of fact. The referee has found that defects existed, but has not passed upon the question whether they were substantial so as to defeat any right of action, or so trivial and unimportant as to require the application of the modified rule before stated; nor has he furnished any guide by which we can, as a question of law, determine that question, except that he finds that the plaintiffs intended in good faith to perform their con- tract. The referee finds, in the fiftieth clause of what are called special findings, "That the work was never com- pleted by the claimants according to the plans and speci- fications in the respects found by me in my report, or specially found by me herein." The defects thus found are quite numerous, and em- brace defects in materials and workmanship, in the plaster- ing, the walls were out of plumb, the windows were too narrow, an omission to put sills under cross partitions ; there was some leakage; folding doors were too narrow and too short ; an omission to replace lightning-rods, torn down to perform the work; defective materials and workmanship in the mouldings and casings, and some other similar defects. As to some of the defects, the referee found that they had been waived, or should have been objected to while the work was progressing; as to others, that there was no evidence of damages by rea- son of them ; and, as to others, he allowed compensation in damages, but did not find whether they were of such a material character as to preclude a recovery or not; nor, upon the theory upon which he determined the case, DECISIONS FOR REFERENCE READING aoi was it essential that he should do so. That theory was that, by the terms of the contract, the architect had power to bind both parties by his acceptance of the work and materials so far as to enable the plaintiffs to maintain an action, that the architect superintended the work and accepted it after it was completed, and that the defendant was bound thereby to pay for it, less the value of the de- fects proved. After an examination of the case, I do not think this proposition can be sustained. In the first place the con- tract confers no power upon the architect to change or alter the plans and specifications ; nor is there any pro- vision, found in many such contracts, that the decision of the architect shall be final and conclusive upon the de- fendant. The contract provides "that the materials to be furnished shall be of the best quality, and the work- manship performed in the best manner, subject to the acceptance or rejection of Edward Wall, architect, and all to be in strict accordance with the plans and specifi- cations, which are signed by the parties of the second part, and form part of this contract." The architect also had power to reject any particular work or materials; and in such case the builders were to remedy the defects. This is all the authority which the architect had under this contract, and his authority was equally known to both parties. It is quite clear to my mind that the ac- ceptance of the work by the architect did not relieve the plaintiffs from their agreement to perform this work ac- cording to the plans and specifications. The provisions are distinct and independent. The contract was to be per- formed in a certain manner, particularly specified in writ- ing; and, in addition, it was to be subject to the accept- ance or rejection of the architect ; but his acceptance of a different class of work or inferior materials from that contracted for would not bind the defendant to pay for them. She was obliged to pay only where "the work was 202 LAW OF ARCHITECTURE AND BUILDING done completely and accepted." The provision for ac- ceptance was an additional safeguard against defects not discernible by an unskilled person. This principle was substantially held in Bird v. Smith (64 E. C. L. R., 785), where the contract was for the sale and delivery to the plaintiff of a quantity of iron rails of certain weights, shapes and dimensions, and to be inspected and certified as then agreed upon, and in quality equal to any rails made in Staffordshire. A plea that the rails were inspected, certified and approved by an agent of the plaintiff's, as provided in the contract, was held bad on demurrer on the ground (among others) that "each stipulation is, in its terms, distinct, and, in its nature, as an absolute warranty for quality, may well be required, in addition to a provision for inspection and ap- proval, to guard against defects which inspection cannot discover." In Wyckoff v, Meyers (44 N. Y., 143), where it was held that the certificate of the architect was conclusive upon both parties, the contract provided that payment should be made upon the certificate of the architect ; and it was also provided that disputes respecting the construc- tion and meaning of the drawings and specifications should be submitted to the architects, whose decision should be conclusive upon the parties. Every contract must be construed by its own terms, and, I think, the true construction of this contract is, that the provision subjecting the work and materials to the acceptance of Mr. Wall was for the benefit of the defendant as an ad- ditional protection to the agreement, on the part of the builders, to perform the work according to the plans and specifications, and such seems to have been the under- standing of both parties by the course of evidence on the trial. The acceptance by the architect would be impor- tant in establishing that the work and materials were in compliance with the contract, but would not be sufficient DECISIONS FOR REFERENCE READING 203 to sustain a recovery if it appeared that the contract had not been substantially performed. We cannot determine whether this construction of the contract would have changed the result at the trial be- fore the referee or not, because the referee did not con- sider or pass upon the question of substantial perform- ance, but held that such performance was established by the acceptance of the architect, so far as to enable the plaintiff to maintain the action. In this he erred. But I cannot agree that there was such acceptance of the work by the architect as to bind the defendant, even if he had authority to bind her. The facts, upon which the referee found that the architect accepted the work, are stated in the report, and are embraced in numerous speci- fications; but so far as material are, substantially, that the architect did not see the work during the taking down of the old roof, erecting the studding and putting up the new roof, nor the partitions of the attic floor, or before the lath and plastering were on, and that he only saw the work, on an average, about once a week ; that about the time the work was finished he and one of the claimants went over a portion of the work together in the absence of the owner, but did not thoroughly examine the work ; that he pointed out certain things to be done, and on the next day the other claimant went to the house to do the things which his co-claimant stated that the architect pointed out, but did not do all of them ; that a day or two afterward, the architect not having seen the work mean- time, met one of the claimants in the street and asked him if the things he had specified had been done; that the claimant replied that they had, and asked for a cer- tificate, which the architect promised to give in a few days, after he had been over to see the work ; "that after- ward the claimants called again upon the architect at his home for the certificate, and that he told them that he had not seen the work yet and promised to leave a cer- 204 LAW OF ARCHITECTURE AND BUILDING tificate at the claimants' house in a few days after he had been over to see the work, and at the same time ad- vised the claimants to go and compromise with the owner, and if they could not make it out (the settlement) he would give the certificate anyway;" that the architect did not know of the objections of the owner to the work, and on making a thorough examination he was of opinion that the work was inferior in quality and in workman- ship and did not comply with the contract in all respects, and never gave the certificate or otherwise accepted the work. Conceding the power claimed for the architect, these facts fail to establish such an acceptance as would fore- close the defendant. At most, it was only a promise to accept, and that, too, in substance after a subsequent sat- isfactory examination of the work. The work was not satisfactory when the examination was subsequently made. But if the acceptance had been unqualified and a certificate given without knowing the facts concerning which a subsequent examination showed he was mistaken, the acceptance and certificate would have had no binding force. Fraud or mistake vitiates the certificate in those cases where a certificate is otherwise conclusive. (44 N. Y., supra.) So that, in any point of view, the referee erred in holding that the defendant was in any degree prejudiced in her defense by what was said or done by the architect upon the subject of the acceptance of the work. There are other conclusions stated in the numer- ous findings of the referee to which I can not fully as- sent, but which are comparatively subordinate, and as there must be a new trial I do not deem it material to examine them. It is not intended, in the views above ex- pressed, to decide or intimate an opinion that the claim- ants are not entitled to maintain this action and recover the contract price, less such reasonable damages as the defendant has sustained by reason of the defects and omissions appearing in the work or materials. If the DECISIONS FOR REFERENCE READING 205 claimants acted in good faith, and honestly performed the contract in all substantial particulars, they should not be compelled to forfeit the whole payment by reason of in- advertent or slight defects. So, too, the plaintiffs may recover if the defendant, by herself or authorized agent, has waived full performance, or consented to accept the work subject to deductions for defects. On the other hand, if these defects and omissions are so numerous and pervading as to show that the whole job was done in a slovenly and improper manner, not conforming substan- tially with the plans and specifications, and there has been no waiver, there is no rule of law or morality which entitled the claimant to compensation. From the nature of the case it cannot be difficult to reach a just result at another trial, or even by a proper spirit of accommoda- tion on the part of the parties themselves to arrive at such a result, without further litigation or expense. The point is made by the appellant that the judgment should be reversed without a new trial, claiming that the lien has expired, and no personal judgment can be rendered against the defendant. This position is not ten- able. If the lien has expired the action can still be pros- ecuted as a personal action. The twentieth section, as amended in 1871, is explicit in retaining the lien, but it is unnecessary to determine now whether the lien continues or not. Judgment reversed and new trial granted, costs to abide the event. All concur, except GROVER, J., not voting. Judgment reversed. GILMORE v. STEVENS, (54 How. Pr. (N.Y.), 197.) Trial Term, March, 1877. Arthur Gilman, an architect, sues Mrs. Marietta R. Stevens, the defendant, for a balance of $832 upon an 206 LAW OF ARCHITECTURE AND BUILDING account for professional services in completing and building an addition to the Stevens apartment house, corner of Twenty-seventh Street and Fifth Avenue, New York City, the other portion of said apartment house having been constructed by another architect, Mr. R. M. Hunt. The complaint likewise claimed full compensa- tion as upon an estimated cost of $425,000, according to the schedule of the Institute of Architects, for profes- sional services in and about a hotel proposed to be built by the defendant (as alleged) upon land belonging to the late Paran Stevens, the defendant's husband, at the cor- ner of Thirty-seventh Street and Fifth Avenue, New York City, which last hotel was never built. The an- swer is a general denial, and alleges for a further de- fense, and as well by way of counter-claim, that the plaintiff in his professional capacity as an architect under- took and agreed to supervise the construction of the Twenty-seventh street house, and to see that the same was built of the best of material, and in a strong and sub- stantial manner, and made suitable for its purpose, while in fact and in consequence of "negligence, and want of skill and attention" on the part of the plaintiff the said building was not constructed in a strong and substan- tial manner. "Everything necessary to make the same strong and substantial was not done." "The materials used in and about the construction of the same were not of the best character, and the work and labor upon the same were not faithfully performed, and that in conse- quence thereof the said building is less in value by the sum of $20,000 and upwards than it should be if the plaintiff had performed his agreement and discharged his duty in the premises, by reason whereof, as the de- fendant is advised and believes, the plaintiff is liable to her in the sum of $20,000 and upwards, for which, by way of counter-claim, she asks judgment against him in this action, with interest." The defendant's testimony was to the effect that she DECISIONS FOR REFERENCE READING 207 merely considered a proposal to build a hotel at Thirty- seventh Street and never decided so to do, nor employed plaintiff to design such an hotel, and that the plaintiff's plans, if he made any such, were an adaptation of plans already made by plaintiff for another person, and that she estimated her damage from the ill construction of the Twenty-seventh Street house at $20,000. With refer- ence to the Twenty-seventh Street house the defendant's son-in-law testified that certain arches over the store win- dows in the first floor were weak so that he saw the bricks bulging out above them. No architect was called by the defendant, but two builders testified in her behalf that, in their opinion, the material used was not of the best quality and the work was inferior, and that the value of the building was very much less on account of those facts. On the part of the plaintiff five builders testified to their having made offers to put the building in good condition for comparatively small sums ranging from $1,000 to $2,000, and that the need of repairs was largely due to the fact that the building was erected in winter and without the heat which defendant had agreed to furnish, and that such repairs were usually required, and various architects were called to prove the plaintiff's experience and professional stand- ing. The specifications were put in as tending to show that first-class work and material were not contracted for on the Twenty-seventh Street house, as the specifications called in some places for "2d quality pine" and for "two coat work in plastering." The plaintiff testified that the defendant ordered and insisted upon repeated changes from his plans and directions, and failed to make the pay- ments agreed on and needed to carry on the work. As to the denial of employment upon the Thirty-seventh Street hotel letters of the defendant were put in evidence in one of which she urged the plaintiff to hasten those plans, and in another of which suggested to the pro- posed builder of the last hotel to "excavate under" a 208 LAW OF ARCHITECTURE AND BUILDING florist who was occupying the Thirty-seventh Street land and "tumble him in" if he did not get out of his (the builder's) way. The court allowed evidence as under the before-mentioned allegations of the answer as to certain payments (referred to in the charge) which plaintiff re- ceived from the builder. The plaintiff admitted receiv- ing certain sums of money from the builder at the time of the alleged proposition to build at Thirty-seventh Street, the same builder having then not altogether com- pleted the Twenty-seventh Street house, and the plaintiff alleged that such moneys were advances and loans to en- able him to employ a staff of draughtsmen upon the Thirty-seventh Street plans at the defendant's behest. The drawings and plans offered in evidence as for the contemplated hotel at Thirty-seventh Street, contained no "working plans" nor "detail drawings," as to which fact there was at first a misunderstanding. The sched- ule above referred to is admitted in evidence and reads : "Schedule of charges adopted by the American Institute of Architects. For full professional services (including superintendence), five per cent upon the cost of the work. Partial service as follows: For preliminary studies, one per cent; for preliminary studies, general drawings and specifications, two and a-half per cent; for preliminary studies, general drawings, details and specifications, three and a-half per cent. For stores, three per cent upon the cost, divided in the above ratio. For works that cost less than $5,000, or for monumental and decorative work, and designs for furniture, a special rate in excess of the above. For alterations and additions, an additional charge to be made for surveys and measurements. Nec- essary traveling expenses to be paid by the client. The architect's payments are successively due as his work is completed, in the order of the above classifications. Until an actual estimate is received, the charges are based upon the proposed cost of the works, and the pay- ments are received as installments of the fee, which is DECISIONS FOR REFERENCE READING 209 based upon the actual cost. Drawings, as instruments of service, are the property of the architect. By order Richard Upjohn, President, Carl Pfeifer, Secretary." John Townshend and W ' . G. Peckham, Jr., for plaintiff. John E. Parsons, for defendant. The cause was tried before HON. H. C. VAN VORST and a jury. The judge charged the jury as follows: VAN VORST, J. The plaintiff, gentlemen, an architect, interposes in this action two distinct claims for services, alleged to have, been performed by him in his profession, for the defendant. The first is for drawing plans and specifications, making estimates and calculating quanti- ties, in respect to building on an addition to a building on the south side of Twenty-seventh Street, and the west side of Fifth Avenue, and also for superintending that work. There is no dispute but that the plaintiff rendered this specific service. In fact, it is conceded that he drew the plans and specifications, and that he supervised the work upon the addition to the apartment-house. The evidence is that for such services the customary charge is five per cent, computed upon the cost of the building. It is es- tablished that the claim for those services has all been adjusted and paid by the defendant, with the exception of a balance of about $832, which amount the plaintiff still claims to be due and owing to him for his services in respect to the addition to the apartment-house. Now, gentlemen, by the contract under which this building was erected, the contractor, Mrs. Jones, under- took to complete the work on or before the 1st of Febru- ary, 1874, and the contract, which is in writing, states that the work was to be done in a good, workmanlike and substantial manner, to the satisfaction, and under 210 LAW OF ARCHITECTURE AND BUILDING the direction, of the plaintiff, the architect, to be testified by a writing or certificate under his seal. These are sig- nificant words, gentlemen, and, doubtless, you will not lose sight of them. The duty of the plaintiff, therefore, it is quite clear, was to see to it that the building was erected, having reference now, gentlemen, to those terms that I have suggested to you as being significant. The work had to be done in accordance with the plans, ele- vations, sections and specifications furnished by the plaintiff, and to his satisfaction ; and the payment to the contractor for the work as it progressed, which was to be paid in fifteen installments, was dependent, in each in- stance, upon a certificate in writing, to be obtained from the plaintiff, that the contractor was entitled to the spe- cific payments. Of course, the giving of those certificates contemplated that the contractor had done the work in conformity with the plans and specifications, and to the satisfaction of the plaintiff. The plaintiff then occupied an important and highly responsible position in relation to this work, both to the contractor and to the defendant. It was clearly his duty to exercise proper vigilance and skill in the supervision of this work; to see that it was done in the manner contemplated by the specifications, and in a good, workmanlike and substantial manner. The defendant claims that the plaintiff has neglected his duty in his employment, and that through such neglect she has sustained damage; and, gentlemen, this is the subject that chiefly, I may say almost exclusively, de- mands your attention upon this branch of the case. Was the material used of the quality required? Was the work done in the manner contemplated by the contract the plans and specifications? The plaintiff gave the cer- tificates called for, and upon their faith the defendant has paid out, as is claimed by her, the cost of the struc- ture. Fourteen of these certificates, signed by the plaintiff, have been produced in evidence; the last, the fifteenth certificate, is not produced according to my rec- DECISIONS FOR REFERENCE READING 211 ollection of the case, although there has been, I believe, some evidence given with regard to the substance of its contents, from a memorandum that Mr. Oilman had. Gentlemen, it was the duty of the plaintiff to exercise the skill and attention required of a person standing in the relation he did with respect to the materials to be used and the work to be done. Does the evidence show that he has been at fault in these respects? Now, that is for you to determine. Evidence has been adduced in regard to the material used and its character, and as to the manner in which the work has been done. The paint- ing and plastering, it is claimed, are not such as is called for; that they are defective in character and execution. Gentlemen, you and I are greatly indebted to the learned gentlemen who have tried this case with signal ability on each side; and they have called your attention to the evidence, Mr. Parsons giving you his views, going into details with regard to the points in which he says this work has not been done according to the plans and speci- fications, and the learned gentlemen on the other side have given you their views of the same branch of the case. Therefore, I say, I am relieved from going into detail with regard to these specific points in which it is claimed that the work has not been done according to the plans and specifications, and I am the more reluctant, gentlemen, to enter into any statement upon that point, because I am aware that it is a part of the case, entirely and exclusively within your province, and because by mentioning one subject or omitting to mention another it might be considered that I attached an undue impor- tance to one and did not properly appreciate the im- portance of another. Therefore I am disposed to leave this entire matter where it properly belongs, with you, and upon you the responsibility must rest to determine it properly and correctly. But, gentlemen, you will determine, under the evi- dence, how the facts are in these regards, and if the work 212 LAW OF ARCHITECTURE AND BUILDING and material were defective, then whether such defects are in consequence of, or owing to, the negligence of the plaintiff in any regard. In determining this you will doubtless consider, and it would be your duty to con- sider, the obligation and the duty the plaintiff assumed and the manner in which he has met those obligations and discharged the duty, and whether the defects are of such a character as by the exercise of the ordinary skill and attention of a person of his profession and in his re- lation they could have been guarded against and pre- vented. Now, gentlemen, for any deficiency, for any damage the defendant has sustained through the neglect of the plaintiff, if there be any neglect, in the superintending of this work and in giving the certificates upon which she has made payments, the plaintiff is liable and the amount of such damage should be allowed in this action to her. The next claim of the plaintiff is for drawing plans and specifications and for other services as an architect in regard to a building proposed to be erected on the cor- ner of Thirty-seventh Street and Fifth Avenue. The building was not erected and the plaintiff's claim there- for, is, by himself, limited to two and a half per cent instead of the full charge of five per cent for drawing the plans, &c., and three quarters of one per cent for taking the quantities, in all amounting to the sum of $10,562. The plaintiff claimed that he performed these services, and that he did so upon the defendant's re- tainer. He has been examined himself as a witness on this subject, as has also Mr. Crooks, and it is claimed by the plaintiff's counsel that there is found in the testimony of other witnesses corroboration of the principal fact, as he claims, that plaintiff was employed by the defendant to render these specific services for which he seeks a re- covery in this action growing out of the Thirty-seventh property, which was contemplated to be improved. Now, in order to sustain the plaintiff's claim for these services DECISIONS FOR REFERENCE READING 213 in respect to this Thirty-seventh Street property, you are to be satisfied that he performed the work and services necessary to entitle him to the commission charged ; that he performed that service which would entitle him to a commission of two and one-half per cent for drawing the plans and specifications, and three quarters of one per cent for taking out the quantities: that he actually performed this service; that is to say, that he drew and completed the plans and estimates, and computed the quantities for a building proposed to be erected by the defendant upon the property in question. I don't sup- pose that the plaintiff himself would insist that for an immature plan, for an entrance upon a service of this character ; that is, the drawing of plans and specifications, and the taking out of quantities, and the like of that, for an incomplete service in that regard he would be entitled to his full commission, and therefore his claim is that he has rendered all the services necessary to entitle him to the full commission. Of course, the drawing of plans for a building would seem in reason to be a sort of unit, a complete thing; that there is everything here from which the building might be erected from its foundation to the roof or the chimneys on the roof, everything. I suppose that these papers, which are designated by the general term, plans and specifications, and drawings, and estimates, and all that, represent the complete building as far as it can be represented on paper. I think that would in reason be the construction to be put upon such an effort as is contemplated by the case. Now, gentle- men, I say that you are to be satisfied that the work was done in that way substantially and completely; in other words, that he has rendered all the service to entitle him to such a commission as that. Now, as the charge made by the plaintiff is upon the basis of the contemplated cost of the building, it would seem that you should be satisfied that the arrangements between the plaintiff and defendant had progressed, ad- 214 LAW OF ARCHITECTURE AND BUILDING vanced, to the position that the expense of the contem- plated building had been substantially assumed or in judg- ment reached, and with respect to which the plans and estimates were made or accommodated. It would seem that the cost of the improvement is an element in arriv- ing at the amount of compensation that the plaintiff would be entitled to, r that an architect would be entitled to, for performing these services. It must be upon the basis of the cost of the building and the completion of all the plans and specifications with regard to it. Now, if that were all that belongs to this branch of the case probably you could not have a great deal of difficulty, and at any rate that your determination could be more rapidly reached were it not for some other considerations which are to be noticed. But before stat- ing that I presume, gentlemen, that I may make a general statement to you, which will doubtless be satisfactory to your reason : That parties are entitled to be paid for such work, labor and services as they have rendered to others at their request and for their advantage. That is an or- dinary rule, good in morals as in law. Now, if this work has been performed in the manner that I have described, is there anything in this case which relieves the de- fendant from paying the plaintiff's claim? The defendant herself has been examined as a witness, and she says, among other things, that she did not own the property. But, gentlemen, the mere fact that Mrs. Stevens did not own the property is not enough to ex- cuse her, and I do not understand her learned counsel to advance that proposition either because she might have contemplated acquiring it for the purpose of improving it, and in that way employed the plaintiff to perform the services which he claims to have rendered; and whether she ever acquired the property or not, it would be imma- terial if she did employ him to render the service, and he rendered it at her request without any other condition as to payment. I say that the mere fact that she did DECISIONS FOR REFERENCE READING 215 not own the property herself, separated from every other consideration, would be no reason to relieve her from her obligation to pay for the work which had been performed, if it was performed at her request. But the defendant claims, among other things, that she did contemplate acquiring the property and improving it, and it is within her evidence, it is within her claim at any rate, or that of her counsel, that this was substantially a conditional affair it is her theory of the case, that it was the understanding that, for whatever services plain- tiff performed in the immature condition in which the whole arrangement was, he was not to be paid ; in other words, that he said it should cost her nothing. There seems to be no controversy, as I have already stated, about there being a balance due to Mr. Oilman for serv- ices upon the apartment-house. His claim, with regard to services upon the Thirty-seventh Street house, is dis- puted entirely, and the defendant sets up a claim for dam- ages. As I have stated before, if the defendant has sus- tained any damage through the plaintiff's negligence, it is proper for you, and you should set off the damage she has so sustained against the claim on the Twenty-seventh Street house ; and if that is all there is of the case under the pleadings, she would be entitled to a judgment for any overplus of damages, if there is any in her favor. But if you come to the conclusion that the plaintiff is en- titled to pay for his services, for the completion of the drawings, plans and specifications for the Thirty-seventh Street house, then you may set off against both claims whatever damages, if any, you find she has sustained through the negligence of the plaintiff, if he has been guilty of any negligence (which I have already described to you in the other part of the case) you may set it off against that, and for any residue in his favor, if there is any, you should render him a judgment for such residue. I think, gentlemen, that is all that is necessary for me to say about that. This is a case of importance to the par- 216 LAW OF ARCHITECTURE AND BUILDING ties ; it is important to the plaintiff ; it is important to the defendant; and I cannot think that your labors will be protracted under the examination which the case has re- ceived at the hands of the intelligent counsel, to whom its care has been intrusted. The plaintiff asks me to charge you, and I do charge you, "That an architect is only required to perform his work with ordinary care, diligence and skill. Ordinary or due skill means that degree of skill which men en- gaged in that peculiar art usually employ. It does not mean that high degree of skill which belongs only to a few men of extraordinary endowments and capacity. "That the burden is upon the defendant to establish that the plaintiff did not exercise ordinary care, diligence and skill in his superintendence of the building, and that unless the jury are satisfied that the plaintiff did not ex- ercise ordinary care, diligence and skill in such superin- tendence, the plaintiff is entitled to recover for his serv- ices as architect for the addition to the Stevens house, so called. "That the mere fact that the plaintiff introduced or rec- ommended Jones to defendant, or recommended defend- ant to employ Jones, does not make the plaintiff responsi- ble in this action for the intemperance or other miscon- duct of Jones. "That for any misfeasance of Jones in the matter of the contract, Jones himself, or Mrs. Jones, or her surety alone, is responsible. "That the defendant, not having set up any defense of fraud or collusion between plaintiff and Jones in her answer, the jury are not to consider that as a question in the case." With respect to that, I say that that question of abso- lute fraud is not involved in this action. The question is whether plaintiff has neglected his duty as superin- tending architect to the defendant's injury. If there was any collusion between Jones and the plaintiff, it has DECISIONS FOR REFERENCE READING 217 no bearing otherwise than as it affects the manner in which the plaintiff discharged his duty to the defendant, and whether any negligence grew out of it to her in- jury. "That for any delay in the completion of the contract, and for any damages arising therefrom, the plaintiff is in no case responsible. For any damage in this regard the defendant has her remedy on the contract." With respect to that, I say that is so, unless the delay was in some way the result of the plaintiff's negligence in super- intending, and could have been avoided by the exercise of ordinary care on his part ; and that if there is any lia- bility for damages flowing from it, it would be the ap- proximate damage flowing from such a neglect of duty. "That if the jury are satisfied the plaintiff did not ex- ercise ordinary care, diligence and skill in the superin- tendence of the addition to the Stevens house, then the defendant is entitled to such damages as were occasioned thereby, and such damages are the costs of making the work a good job according to the requirements of the contract." That is so in regard to those particular mat- ters. If it be in that condition that this request con- templates, or assumes that the cost of making the work a good job according to the contract would be the measure of damages, and I do not understand the learned counsel for the defendant even to dissent from that, judging from the manner in which he has conducted that branch of the case, because the defendant's counsel has introduced evi- dence with regard to these particular points, to show what it would cost to make the premises according to the plans and specifications, or to render them in a good and workmanlike condition in the particulars referred to there. "That there is no evidence of any loss of tenants or any loss of rent, or that the house, for all purposes for which it was intended, did not fully answer the object in- tended." Now, gentlemen, I do not myself remember 2i8 LAW OF ARCHITECTURE AND BUILDING that there is any evidence of any loss of rents. My im- pression is the other way, that there is no such evidence ; but it is for you, entirely, to pass upon the other ques- tion embraced in this ; whether the buildings did not fully answer the object intended, that is for you to determine under the evidence. "That as to the charge for preparing the plans re- specting the Thirty-seventh Street lots, if the jury be- lieve that the defendant did authorize the preparation of said plans, the plaintiff is entitled to recover his fees for such services." This assumes that he rendered the serv- ices at her request, or for her advantage. "That the fees for preparing such plans, if payable at all, are two and a-half per cent on the value of the con- templated building." That is correct. I suppose you de- sire to add the three- fourths of one per cent ; you do not say anything about that. Mr. Peckham: We do not desire to. The Court: I charge you that the fees, if payable at all, are two and a half per cent upon the contemplated cost of the building. There seems to be no controversy that those are the rates that architects are entitled to re- cover in cases of this character. A Juror: I would ask if that does not cover working plans ? The Court: Yes. The next one is : "That whether the defendant did or did not own, or had or had not elected to take the Thirty-seventh Street lots is not decisive of plaintiff's right to recover or of the defendant's liability to pay. If the defendant ordered the plans to be drawn it was not for the plaintiff to in- quire whether or not the defendant had any interest in the ground. "That the defendant not having paid any of the bills for extras, cannot claim any damages in respect of such extras." Whether she has paid or not for extras is not the question. If she is liable to pay that is enough. DECISIONS FOR REFERENCE READING 219 "That from any damages to which the defendant may have shown herself to be entitled, is to be deducted the value of the extra work for which she has not paid." That I decline to charge in that form. I charge this : "That Mrs. Stevens is chargeable with the knowledge of the standard and regular rates of architects' fees as asked for by Mr. Oilman on the Thirty-seventh Street hotel, because it appears that she had been charged the same rates by Mr. Oilman in several previous jobs." So much, gentlemen, for the request of the plaintiff. Mr. Peckham: I ask your honor to charge, that the de- tails technically so called, are not claimed or called for in the charge of two and a-half per cent. One per cent additional is allowed on the schedule for the technical de- tails, which the juror calls the working drawings. The Court: I charge that. Mr. Townshend excepts to those parts of the charge plaintiff's requests are not charged. Defendant's counsel accepts the charge itself but ex- cepts separately to the charge, so far as it concerns the request of the plaintiff on various subjects. Verdict for the plaintiff $3,000. OTTO L. SPANNHAKE, INC., v. MOUNTAIN CONSTRUCTION COMPANY AND NATIONAL SURETY COMPANY, (159 App. Div. (N. Y.) 727.) SCOTT, J. 728: The defendant Mountain Construc- tion Company made a contract with plaintiff, an archi- tect, to draw plans for and superintend the construction of certain houses in the City of New York. The plain- tiff filed a lien for the value of his services both for draw- ing plans and for superintendence. This action is to fore- close that lien. The City Court awarded judgment to plaintiff for both classes of service. This judgment was modified by the Appellate Term by striking out so much of the recovery as represented the value of the plans, al- lowing plaintiff to recover only for superintendence. In this, as we think, the Appellate Term erred. The gen- eral rule to be deduced from the adjudicated cases is that while an architect is not entitled to a mechanic's lien for drawing plans alone, yet when he both draws plans and superintends construction he is entitled to a lien for the value of both plans and superintendence. In Stryker v. Cassidy (76 N. Y. 50, 53) the Court of Appeals said : "An architect who makes the plans and supervises the erection of a building is within the words and reason of the law." The rule above stated is well il- lustrated by Rinn v. Electric Power Company (3 App. Div. 305). In that case the architect had drawn plans for a large building, of which, however, only one-half had been erected under his superintendence. He was allowed a lien, in addition to his fees for superintend- ence, for one-half of the value of the plans which he had prepared for the whole building, the Court remarking that an architect cannot have a lien for making plans alone, but when he makes the plans and supervises the construction "it is the part the architect takes during the construction that draws his services within the lien law." In Thompson-Starrett Co. v. Brooklyn Heights Realty Co. (in App. Div. 358) the plaintiff was denied a lien for preparing plans because no building was erected. In the present case the plaintiff not only drew plans but su- perintended the construction, as was found by the City Court, and virtually affirmed by the Appellate Term, which allowed a recovery for the value of his services for supervision. There is no force in the suggestion that plaintiff should have filed a separate lien on each build- ing. (Woolf v. Schaefer, 103 App. Div. 567.) The determination of the Appellate Term must be re- versed and the judgment of the City Court affirmed, with costs to appellant in this court and at the Appellate Term. DECISIONS FOR REFERENCE READING 221 INGRAHAM, P. J., CLARKE, DOWLING and HOTCHKISS, J. J., concurred. Determination reversed and judgment of City Court affirmed, with costs to appellant in this court and at the Appellate Term. Order to be settled on notice. APPENDIX B THE STANDARD DOCUMENTS OF THE AMERICAN INSTITUTE OF ARCHITECTS (INCLUDING VARIOUS SUPPLEMENTAL FORMS AND SUGGESTIONS ISSUED BY THE INSTITUTE) (Published by special permission and courtesy of the American Institute of Architects.) NOTE. This Form of Agreement is approved by the American Institute of Architects when used with the General Conditions of the Contract issued by the Institute. THE STANDARD FORM OF AGREEMENT BETWEEN CONTRACTOR AND OWNER ISSUED BY THE AMERICAN INSTITUTE OF ARCHITECTS This form has been approved by the National Association of Builders' Exchanges, The National Association of Master Plumbers, and the National Association of Master Steam and Hot Water Fitters. Second Edition, Copyright 1915 by the American Institute of Architects, The Octagon, Washington, D. C. This Form is to be used only with the Standard General Conditions of the Contract. THIS AGREEMENT made the. day of in the year Nineteen Hundred and. by and between hereinafter called the Contractor, and, hereinafter called the Owner, WITNESSETH, that the Contractor and the Owner for the considerations hereinafter named agree as follows: Article i. The Contractor agrees to provide all the ma- terials and to perform all the work shone on i.he Draw- 222 STANDARD DOCUMENTS 223 ings and described in the Specifications entitled (Here insert the caption descriptive of the work as used in the Proposal, General Conditions, Specifications, and upon the Drawings.) prepared by, acting as, and in these Contract Documents entitled the Architect, and to do everything required by the General Conditions of the Contract, the Specifications and the Drawings. Article 2. The Contractor agrees that the work under this Contract shall be substantially completed (Here insert the date or dates of completion, and stipulations as to liqui- dated damages, if any.) Article j. The Owner agrees to pay the Contractor in current funds for the performance of the Contract ($ ) subject to additions and deductions as provided in the General Conditions of the Contract and to make payments on account thereof as provided therein, as follows : (Here insert provisions as to the method and times of payments.) Article 4. The Contractor and the Owner agree that the General Conditions of the Contract, the Specifications and the Drawings, together with this Agreement, form the Contract, and that they are as fully a part of the Con- tract as if hereto attached or herein repeated; and that the following is an exact enumeration of the Specifica- tions and Drawings: The Contractor and the Owner for themselves, their sue- 224 LAW OF ARCHITECTURE AND BUILDING cessors, executors, administrators and assigns, hereby agree to the full performance of the covenants herein contained. IN WITNESS WHEREOF they have hereunto set their hands and seals, the day and year first above written. In Presence of as to (SEAL) as to (SEAL) THE GENERAL CONDITIONS OF THE CONTRACT Standard Form of the American Institute of Architects This form has been approved by the National Association of Builders' Exchanges, The National Association of Master Plumbers, and the National Association of Master Steam and Hot Water Fitters. Second Edition, Copyright 1915, by the American Institute of Architects, The Octagon, Washington, D. C. INDEX TO THE ARTICLES OF THE GENERAL CONDITIONS 1. Definitions. 2. Documents. 3. Details and Instructions. 4. Copies Furnished. 5. Shop Drawings. 6. Drawings on the Work. 7. Ownership of Drawings. 8. Samples. 9. The Architect's Status. 10. The Architect's Decisions, n. Foreman, Supervision. 12. Materials, Labor, Appliances. 13. Inspection of Work. 14. Correction Before Final Pay ment. 15. Deductions Work. j 6. Correction ment. 17. Protection of Work and Prop- erty. 1 8. Emergencies. 19. Damage to Persons. 20. Liability Insurance. 21. Fire Insurance. 22. Guaranty Bonds. 23. Cash Allowances. for Uncorrected After Final Pay- 24. Changes in the Work. 25. Claims for Extras. 26. Applications for Payments. 27. Certificates and Payments. 28. Payments Withheld. 29. Liens. 30. Permits and Regulations. 31. Royalties and Patents. 32. Use of Premises. 33. Cleaning Up. 34. Cutting, Patching and Digging. 35. Delays. 36. Owner's Right to Do Work. 37. Owner's Right to Terminate Contract. 38. Contractor's Right to Stop Work or Terminate Contract. 39. Damages. 40. Mutual Responsibility of Con- tractors. 41. Separate Contracts. 42. Assignment. 43. Subcontracts. 44. Relations of Contractor and Subcontractor. 45. Arbitration. STANDARD DOCUMENTS 225 Article i. Principles and Definitions. (a) The Contract Documents consist of the Agreement, the General Conditions of the Contract, the Draw- ings and Specifications. These form the Contract. (b) The Owner, the Contractor and the Architect are those named as such in the Agreement. They are treated throughout the Contract Documents as if each were of the singular number and masculine gender. (c) The Contractor shall, as in Article 43, be responsible to the Owner for the acts and omissions of his subcontractors and of all persons directly or in- directly employed by him or them in connection with the work. (d) The term Subcontractor includes only those having a direct contract with the Contractor and it in- cludes one who furnishes material even though he does no work. (e) The term "person" or "anyone" as employed herein shall be taken to include a firm or corporation. (f) Written notice shall be deemed to have been duly served if delivered in person to the individual or to a member of the firm or to an officer of the corporation for whom it is intended, or if delivered at or mailed to the last business address known to him who gives the notice. (g) The term "work" of the Contractor or Subcon- tractor includes labor or materials or both, (h) When the words "approved," "satisfactory," "equal to," "proper," "as directed," etc., are used, ap- proval, etc., by the Architect is understood, (j) All time limits stated in the Contract Documents are of the essence of the contract, (k) The law of the place of building shall govern the construction of this contract. Art. 2. Execution, Correlation and Intent of Docu- ments. The Contract Documents shall be signed in 226 LAW OF ARCHITECTURE AND BUILDING duplicate by the Owner and Contractor. In case of failure to sign the General Conditions, Drawings or Specifications the Architect shall identify them. Even though the signatures of the Owner and the Contractor may have been attested by witnesses they may be proved by any competent evidence. The Contract Documents are complementary, and what is called for by any one shall be as binding as if called for by all. The intention of the documents is to include all labor and materials reasonably necessary for the proper execution of the work. It is not intended, however, that materials or work not covered by or properly inferable from any heading, branch, class or trade of the specifica- tions shall be supplied unless distinctly so noted on the drawings. Materials or work described in words which so applied have a well known technical or trade meaning shall be held to refer to such recognized standards. Art. j. Detail Drawings and Instructions. The Architect shall furnish, with reasonable promptness, ad- ditional instructions, by means of drawings or otherwise, necessary for the proper execution of the work. All such drawings and instructions shall be consistent with the Contract Documents, true developments thereof, and reasonably inferable therefrom. The work shall be executed in conformity therewith and the Contractor shall do no work without proper drawings and instruc- tions. The Contractor and the Architect, if either so re- quests, shall jointly prepare a schedule, subject to change from time to time in accordance with the progress of the work, fixing the latest dates at which the various detail drawings will be required, and the Architect shall furnish them in accordance with that schedule. Under like conditions, a schedule shall be prepared, fixing dates for the submission of shop drawings, for the beginning of manufacture and installation of materials and for the completion of the various parts of the work. STANDARD DOCUMENTS 227 Art. 4. Copies Furnished. Unless otherwise pro- vided in the Contract Documents the Architect will furnish to the Contractor, free of charge, all copies of drawings and specifications reasonably necessary for the execution of the work. Art. j. Shop Drawings. The Contractor shall sub- mit two copies of all shop or setting drawings and schedules required for the work of the various trades and the Architect shall pass upon them with reasonable promptness. The Contractor shall make any corrections required by the Architect, file with him two corrected copies and furnish such copies as may be needed. The Architect's approval of such drawings or schedules shall not relieve the Contractor from responsibility for devia- tions from drawings or specifications, unless he has in writing called the Architect's attention to such deviations at the time of submission, nor shall it relieve him from responsibility for errors of any sort in shop drawings or schedules. Art. 6. Drawings and Specifications on the Work. The Contractor shall keep one copy of all drawings and specifications on the work, in good order, available to the Architect and to his representatives. Art. 7. Ownership of Drawings and Models. All drawings, specifications and copies thereof furnished by the Architect are his property. They are not to be used on other work and, with the exception of the signed con- tract set, are to be returned to him on request, at the completion of the work. All models are the property of the Owner. Art. 8. Samples. The Contractor shall furnish for approval all samples as directed. The work shall be in strict accordance with approved samples. Art. p. The Architect's Status. The Architect shall have general supervision and direction of the work. He is not the agent of the Owner, except as provided in the Contract Documents and when in special instances he is 228 LAW OF ARCHITECTURE AND BUILDING authorized by the Owner so to act, and in such instances he shall, upon request, show the Contractor written authority. He has authority to stop the work whenever such stoppage may be necessary to insure the proper execution of the Contract. In case of the termination of the employment of the Architect, the Owner shall appoint a capable and repu- table Architect, whose status under the contract shall be that of the former Architect. Art. 10. The Architect's Decisions. The Architect shall, within a reasonable time, make decisions on all claims of the Owner or Contractor and on all other mat- ters relating to the execution and progress of the work or the interpretation of the Contract Documents. Except as may be otherwise expressly provided in or appended to these General Conditions or as particularly set forth in the specifications, all the Architect's decisions are subject to arbitration. Art. ii. Foreman, Supervision. The Contractor shall keep on the work a competent general foreman and any necessary assistants, all satisfactory to the Archi- tect. The general foreman shall not be changed except with the consent of the Architect. The foreman shall represent the Contractor in his absence and all directions given to him shall be as binding as if given to the Con- tractor. On written request such directions shall be con- firmed in writing to the Contractor. The Contractor shall give efficient supervision to the work, using his best skill and attention. He shall care- fully study and compare all drawings, specifications and other instructions and shall at once report to the Archi- tect any error, inconsistency or omission which he may discover. Art. 12. Materials, Labor, Appliances. Unless other- wise stipulated, the Contractor shall provide and pay for all materials, labor, water, tools, equipment, light and power necessary for the execution of the work. STANDARD DOCUMENTS 229 Unless otherwise specified, all materials shall be new and both workmanship and materials shall be of good quality. The Contractor shall, if required, furnish satisfactory evidence as to the kind and quality of ma- terials. The Contractor shall not employ on the work any unfit person or anyone not skilled in the work assigned to him. Art. 13. Inspection of Work. The Owner, the Ar- chitect and their representatives shall at all times have access to the work wherever it is in preparation or prog- ress and the Contractor shall provide proper facilities for such access and for inspection. If the specifications, the Architect's instructions, laws, ordinances or any public authority require any work to be specially tested or approved, the Contractor shall give the Architect timely notice of its readiness for inspection and the Architect shall promptly inspect it. If any such work should be covered up without approval or consent, it must, if required by the Architect, be uncovered for examination at the Contractor's expense. Re-examination of questioned work may be ordered by the Architect and, if found not in accordance with the Contract, all expense of re-examination and replacement shall be borne by the Contractor, otherwise it shall be allowed as extra work. Art. 14. Correction of Work Before Final Payment. The Contractor shall promptly remove from the premises all materials, whether worked or unworked, and take down and remove all portions of the work con- demned by the Architect as failing to conform to the Contract ; and the Contractor shall promptly replace and re-execute his own work in accordance with the Con- tract and without expense to the Owner and shall bear the expense of making good all work of other con- tractors destroyed or damaged by such removal or re- placement. If the Contractor does not remove such condemned 230 LAW OF ARCHITECTURE AND BUILDING work and materials within a reasonable time, fixed by written notice, the Owner may remove them and may store the material at the expense of the Contractor. If the Contractor does not pay the expense of such removal within five days thereafter, the Owner may, upon ten days' written notice, sell such materials at auction or at private sale and shall account for the net proceeds thereof, after deducting all the costs and expenses that should have been borne by the Contractor. Art. 75. Deductions for Uncorrected Work. If the Architect deems it inexpedient to correct work injured or not done in accordance with the Contract, the difference in value together with a fair allowance for damage shall be deducted, if acceptable to the Owner. Art. 16. Correction of Work After Final Payment. Neither the final certificate nor payment nor any pro- vision in the Contract Documents shall relieve the Con- tractor of responsibility for negligence or faulty ma- terials or workmanship within the extent and period pro- vided by law and upon written notice he shall remedy any defects due thereto and pay for any damage to other work resulting therefrom. All questions arising under this Article shall be decided under Articles 10 and 45. Art. 17. Protection of Work and Property. The Contractor shall continuously maintain adequate protec- tion of all his work from damage and shall protect the Owner's and adjacent property from injury arising in connection with this Contract. He shall make good any such damage or injury, except such as may be directly due to errors in the contract documents. Art. 18. Emergencies. In an emergency affecting the safety of life or of the structure or of adjoining property, not considered by the Contractor as within the provisions of Article 17, then the Contractor, without special instruction or authorization from the Architect or Owner, is hereby permitted to act, at his discretion, to prevent such threatened loss or injury and he shall so STANDARD DOCUMENTS 231 act, without appeal, if so instructed or authorized. Any compensation claimed to be due to him therefor shall be determined under Articles 10 and 45 regardless of the limitations in Article 25 and in the second para- graph of Article 24. Art. /p. Damage to Persons. In addition to the liability imposed by law upon the Contractor on account of bodily injury or death suffered through the Contrac- tor's negligence, which liability is not impaired or other- wise affected hereby, the Contractor hereby assumes, in cases not embraced within such legal liability, the obliga- tion to save the owner harmless and indemnify him from every expense, liability or payment (voluntary payments excepted), by reason of any injury to any person or persons, including death, suffered through any act or omission of the Contractor or any Subcontractor, or any- one directly or indirectly employed by either of them, in the prosecution of any work included in this contract. Art. 20. Liability Insurance. The Contractor shall maintain such insurance as will protect him from claims under workmen's compensation acts and from any other claims for damages for personal injury, including death, which may arise from operations under this con- tract. Certificates of such insurance shall be filed with the Owner, if he so require, and shall be subject to his approval for adequacy of protection. The Owner shall be responsible for his own contingent liability. Art. 21. Fire Insurance. The Owner shall effect and maintain fire insurance upon the entire structure on which the work of this contract is to be done and upon all materials, tools and appliances in or adjacent there- to and intended for use thereon, to at least eighty per cent of the insurable value thereof. The loss, if any, is to be made adjustable with and payable to the Owner as Trustee for whom it may concern. All policies shall be open to inspection by the Con- tractor. If the Owner fails to show them on request or 232 LAW OF ARCHITECTURE AND BUILDING if he fails to effect or maintain insurance as above, the Contractor may insure his own interest and charge the cost thereof to the Owner. If the Contractor is dam- aged by failure of the Owner to maintain such insurance, he may recover under Art. 39. If required in writing by any party in interest, the Owner as Trustee shall, upon the occurrence of loss, give bond for the proper performance of his duties. He shall deposit any money received from insurance in an account separate from all his other funds and he shall distribute it in accordance with such agreement as the parties in interest may reach, or under an award of arbi- trators appointed, one by the Owner, another by joint action of the other parties in interest, all other pro- cedure being in accordance with Art. 45. If after loss no special agreement is made, replacement of injured work shall be ordered under Art. 24. The Trustee shall have power to adjust and settle any loss with the insurers unless one of the contractors interested shall object in writing within three working days of the occurrence of loss and thereupon arbitrators shall be chosen as above. The Trustee shall in that case make settlement with the insurers in accordance with the directions of such arbitrators, who shall also, if dis- tribution by arbitration is required, direct such distribu- tion. Art. 22. Guaranty Bonds. The Owner shall have the right to require the Contractor to give bond cover- ing the faithful performance of the contract and the payment of all obligations arising thereunder, in such form as the Owner may prescribe and with such sureties as he may approve. If such bond is required by in- structions given previous to the receipt of bids, the pre- mium shall be paid by the Contractor; if subsequent thereto, it shall be paid by the Owner. Art. 23. Cash Allowances. The Contractor shall in- clude in the contract price all allowances named in the STANDARD DOCUMENTS 233 Contract Documents and shall cause the work so cov- ered to be done by such contractors and for such sums as the Architect may direct, the contract sum being ad- justed in conformity therewith. The Contractor, in making up his bid, shall add such sums for expenses and profit on account of cash allowances as he deems proper and no demand for expenses or profit other than those included in the contract sum shall be allowed. The Con- tractor shall not be required to employ for any such work a Subcontractor against whom he has a reasonable ob- jection. Art. 24. Changes in the Work. The Owner, without invalidating the contract, may make changes by alter- ing, adding to or deducting from the work, the contract sum being adjusted accordingly. All such work shall be executed under the conditions of the original contract except that any claim for extension of time caused thereby shall be adjusted at the time of ordering such change. Except as provided in Articles 9 and 18, no change shall be made unless in pursuance of a written order from the Owner signed or countersigned by the Archi- tect and no claim for an addition to the contract sum shall be valid unless so ordered. The value of any such change shall be determined in one or more of the following ways : (a) By Estimate and Acceptance in a lump sum. (b) By Unit Prices named in the contract or subse- quently agreed upon. (c) By Cost and Percentage or by Cost and a fixed fee. (d) If none of the above methods is agreed upon, the Contractor, provided he receive an order in writ- ing signed by the Owner and countersigned by the Architect, shall proceed with the work, no appeal to arbitration being allowed from such order to proceed. In cases (c) and (d), the Contractor shall keep and 234 LAW OF ARCHITECTURE AND BUILDING present in such form as the Architect may direct, a cor- rect account of the net cost of labor and materials, to- gether with vouchers. In any case, the Architect shall certify to the amount, including a reasonable profit, due to the Contractor. Pending final determination of value, payments on account of changes shall be made on the Architect's certificate. Art. 25. Claims for Extras. If the Contractor claims that any instructions, by drawings or otherwise, involve extra cost under this contract, he shall give the Architect written notice thereof before proceeding to exe- cute the work and, in any event, within two weeks of receiving such instructions, and the procedure shall then be as provided in the last paragraph of Art. 24. No such claim shall be valid unless so made. Art. 26. Applications for Payments. The Contractor shall submit to the Architect an application for each pay- ment and, if required, receipts or other vouchers from Subcontractors showing his payments to them for ma- terials and labor as required by Article 44. If payments are made on valuation of work done, such application shall be submitted at least ten days before each payment falls due. If required, the Contractor shall before the first application submit to the Architect a schedule of values of the various parts of the work, aggregating the total sum of the contract, divided so as to facilitate payments to subcontractors in accordance with Article 44 (e) made out in such form as the Archi- tect may direct and, if required, supported by evidence as to its correctness. This schedule, when approved by the Architect, shall be used as a basis for certificates of payment, unless it be found to be in error. In applying for payments, the Contractor shall submit a statement based upon this schedule and, if required, itemized in such form as the Architect may direct, showing his right to the payment claimed. Art. 27. Certificates and Payments. If the Con- STANDARD DOCUMENTS 235 tractor has made application as above, the Architect shall, not later than the date when each payment falls due, issue to the Contractor a certificate for such amount as he de- cides to be properly due. No certificate issued nor payment made to the Con- tractor, nor partial or entire use or occupancy of the work by the Owner shall be an acceptance of any work or materials not in accordance with this contract. The making and acceptance of the final payment shall consti- tute a waiver of all claims by the Owner, otherwise than under Articles 16 and 29 of these conditions or under re- quirement of the specifications, and of all claims by the Contractor, except those previously made and still un- settled. Should the Owner fail to pay the sum named in any certificate of the Architect or in any award by arbitra- tion, upon demand when due, the Contractor shall re- ceive, in addition to the sum named in the certificate, interest thereon at the legal rate in force at the place of building. Art. 28. Payments Withheld. The Architect may withhold or, on account of subsequently discovered evi- dence, nullify the whole or a part of any certificate for payment to protect the Owner from loss on account of : (a) Defective work not remedied. (b) Claims filed or reasonable evidence indicating prob- able filing of claims. (c) Failure of the Contractor to make payments properly to subcontractors or for material or labor. (d) A reasonable doubt that the contract can be com- pleted for the balance then unpaid. When all the above grounds are removed certificates shall at once be issued for amounts withheld because of them. Art. 29. Liens. Neither the final payment nor any part of the retained percentage shall become due until the Contractor, if required, shall deliver to the Owner 236 LAW OF ARCHITECTURE AND BUILDING a complete release of all liens arising out of this con- tract, or receipts in full in lieu thereof and, if required in either case, an affidavit that the releases and receipts include all the labor and material for which a lien might be filed ; but the Contractor may, if any subcontractor re- fuses to furnish a release or receipt in full, furnish a bond satisfactory to the Owner, to indemnify him against any claim by lien or otherwise. If any lien or claim re- main unsatisfied after all payments are made, the Con- tractor shall refund to the Owner all moneys that the lat- ter may be compelled to pay in discharging such lien or claim, including all costs and a reasonable attorney's fee. Art. 30. Permits and Regulations. The Contractor shall obtain and pay for all permits and licenses, but not permanent easements, and shall give all notices, pay all fees, and comply with all laws, ordinances, rules and regu- lations bearing on the work. If the drawings and speci- fications are at variance therewith, the Contractor shall notify the Architect in writing before the work is per- formed and the value of any necessary changes shall be adjusted under Art. 24. If any of the Contractor's work shall be done contrary to such laws, ordinances, rules, and regulations, without such notice, he shall bear all costs arising therefrom. Art. 37. Royalties and Patents. The Contractor shall pay all royalties and license fees and shall defend all suits or claims whatsover for infringement of any patent rights and shall save the Owner harmless from loss on account thereof. Art. 32. Use of Premises. The Contractor shall con- fine his apparatus, the storage of materials and the opera- tions of his workmen to limits indicated by law, ordi- nances, permits or directions of the Architect and shall not encumber the premises with his materials. The Contractor shall not load or permit any part of the structure to be loaded with a weight that will endanger its safety. STANDARD DOCUMENTS 237 The Contractor shall enforce the Architect's instruc- tions regarding signs, advertisements, fires and smoking. Art. 55. Cleaning Up. The Contractor shall at all times keep the premises free from accumulations of waste material or rubbish caused by his employees or work and at the completion of the work he shall remove all his rubbish from and about the building and all his tools, scaffolding and surplus materials and shall leave his work clean and ready for use. In case of dispute the Owner may remove the rubbish and charge the cost to the several contractors as the Architect shall determine to be just. Art. 34. Cutting, Patching and Digging. The Con- tractor shall do all cutting, fitting or patching of his work that may be required to make its several parts come together properly and fit it to receive or be re- ceived by work of other contractors shown upon, or reasonably implied by, the Drawings and Specifications for the completed structure and he shall make good after them, as the Architect may direct. Any cost caused by defective or ill-timed work shall be borne by the party responsible therefor. The Contractor shall not endanger any work by cutting, digging or otherwise and shall not cut or alter the work of any other contractor, save with the consent of the Architect. Art. 35. Delays. If the Contractor is delayed in the completion of the work by any act or neglect of the Owner or the Architect, or of any employee of either, or by any other contractor employed by the Owner, or by changes ordered in the work, or by strikes, lockouts, fire, unavoidable casualties or any causes beyond the Con- tractor's control, or by delay authorized by the Architect pending arbitration, or by any cause which the Architect shall decide to justify the delay, then the time of com- pletion shall be extended for such reasonable time as the Architect may decide. 238 LAW OF ARCHITECTURE AND BUILDING No such extension shall be made for delay occurring more than seven days before claim therefor is made in writing to the Architect. In the case of a continuing cause of delay, only one claim is necessary. If no schedule is made under Art. 3, no claim for delay shall be allowed on account of failure to furnish draw- ings until two weeks after demand for such drawings and not then unless such claim be reasonable. Art. 36. Owner's Right to Do Work. If the Con- tractor should neglect to prosecute the work properly or fail to perform any provision of this contract, the Owner, after three days' written notice to the Contractor, may, without prejudice to any other remedy he may have, make good such deficiencies and may deduct the cost thereof from the payment then or thereafter due the Contractor; provided, however, that the Architect shall approve both such action and the amount charged to the Contractor. Art. 37. Owner's Right to Terminate Contract. If the Contractor should be adjudged a bankrupt, or if he should make a general assignment for the benefit of his creditors, or if a receiver should be appointed on ac- count of his insolvency, or if he should, except in cases recited in Article 35, persistently or repeatedly refuse or fail to supply enough properly skilled workmen or proper materials, or if he should fail to make prompt payment to subcontractors or for material or labor, or persistently disregard laws, ordinances or the instructions of the Architect, or otherwise be guilty of a substan- tial violation of any provisions of the contract, then the Owner, upon the certificate of the Architect that sufficient cause exists to justify such action, may, without preju- dice to any other right or remedy and after giving the Contractor seven days' written notice, terminate the em- ployment of the Contractor and take possession of the premises and of all materials, tools and appliances thereon and finish the work by whatever method he may deem STANDARD DOCUMENTS 239 expedient. In such case the Contractor shall not be en- titled to receive any further payment until the work is finished. If the unpaid balance of the contract price shall exceed the expense of finishing the work, including com- pensation to the Architect for his additional services, such excess shall be paid by the Contractor. If such expense shall exceed such unpaid balance, the Contractor shall pay the difference to the Owner. The expense incurred by the Owner as herein provided, and the damage incurred through the Contractor's default, shall be certified by the Architect. Art. 38. Contractor's Right to Stop Work or Ter- minate Contract. If the work should be stopped under an order of any court, for a period of three months, through no act or fault of the Contractor or of any one employed by him, or if the Owner should fail to pay to the Contractor, within seven days of its maturity and presentation, any sum certified by the Architect or awarded by arbitrators, then the Contractor may, upon three days' written notice to the Owner and the Architect, stop work or terminate this contract and recover from the Owner payment for all work executed and any loss sustained upon any plant or material and reasonable profit and damages. Art. 39. Damages. If either party to this contract should suffer damage by delay or otherwise, except as provided in Art. 40, because of any act or neglect of the other party or of any one employed by him, then he shall be reimbursed by the other party for such dam- age. Claims under this clause shall be made in writing to the party liable within a reasonable time of the first ob- servance of such damage and not later than the time of final payment, except in case of claims under Article 1 6, and shall be adjusted by agreement or arbitration. Art. 40. Mutual Responsibility of Contractors. Should the Contractor (see Art. I (c)) cause damage 240 LAW OF ARCHITECTURE AND BUILDING to any other person (see Art. i (e)) employed on the work, the Contractor agrees, upon due notice, to settle with such person by agreement or arbitration, if such person will so settle. If such person sues the Owner on account of any damage alleged to have been so sustained, the Owner shall notify the Contractor, who shall, at his own expense, defend such proceedings and, if any judg- ment against the Owner arise therefrom, the Contractor shall pay or satisfy it and pay all costs incurred by the Owner. The Contractor, if damaged by any person held to the Owner by stipulations such as the above, agrees to set- tle with such person by agreement or arbitration and in no case to sue the Owner on account of such dam- age. Art. 41. Separate Contracts. The Owner reserves the right to let other contracts in connection with this work. The Contractor shall afford other contractors reasonable opportunity for the introduction and storage of their materials and the execution of their work and shall properly connect and coordinate his work with theirs. If any part of the Contractor's work depends for proper execution or results upon the work of any other contractor, the Contractor shall inspect and promptly report to the Architect any defects in such work that render it unsuitable for such proper execution and re- sults. His failure so to inspect and report shall consti- tute an acceptance of the other contractor's work as fit and proper for the reception of his work, except as to defects which may develop in the other contractor's work after the execution of his work. To insure the proper execution of his subsequent work the Contractor shall measure work already in place and shall at once report to the Architect any discrepancy be- tween the executed work and the drawings. Art. 42. Assignment. Neither party to the Contract STANDARD DOCUMENTS 241 shall assign the contract without the written consent of the other, nor shall the Contractor assign any moneys due or to become due to him hereunder, without the previous written consent of the Owner. Art. 43. Subcontracts. The Contractor shall notify the Architect in writing of the names of subcontractors proposed for the principal parts of the work and for such others as the Architect may direct and shall not employ any that the Architect may within a reasonable time ob- ject to as incompetent or unfit. The Contractor may in his discretion or shall, if so required, submit with his proposal, a list of subcontrac- tors. If the change of any name on such list is required or permitted after signature of agreement, the contract price shall be increased or diminished by the difference between the two bids. The Architect shall, on request, furnish to any sub- contractor, wherever practicable, evidence of the amounts certified to on his account. The Contractor agrees to be fully responsible to the Owner for the acts or omissions of his subcontractors and of anyone employed either directly or indirectly by him or them and this contractual obligation shall be in addi- tion to the liability imposed by law upon the Contractor for bodily injuries or death through negligence in the cases covered by Article 19 hereof. Nothing contained in the Contract Documents shall cre- ate any contractual relation between any subcontractor and the Owner. Art. 44. Relations of Contractor and Subcontractor. The Contractor agrees to bind every subcontractor and every subcontractor agrees to be bound, by the terms of the General Conditions, Drawings and Specifications, as far as applicable to his work, including the following provisions of this Article, unless specifically noted to the contrary in a subcontract approved in writing as adequate by the Owner or Architect. 242 LAW OF ARCHITECTURE AND BUILDING The Subcontractor agrees (a) To be bound to the Contractor by the terms of the General Conditions, Drawings and Specifications and to assume toward him all the obligations and responsibilities that he, by those documents, as- sumes toward the Owner. (b) To submit to the Contractor applications for pay- ment in such reasonable time as to enable the Con- tractor to apply for payment under Article 26 of the General Conditions. (c) To make all claims for extras, for extensions of time and for damages for delays or otherwise, to the Contractor in the manner provided in the Gen- eral Conditions for like claims by the Contractor upon the Owner, except that the time for making claims for extra cost as under Article 25 of the General Conditions is one week. The Contractor agrees (d) To be bound to the Subcontractor by all the obliga- tions that the Owner assumes to the Contractor under the General Conditions, Drawings and Speci- fications and by all the provisions thereof affording remedies and redress to the Contractor from the Owner. (e) To pay the Subcontractor, upon the issuance of cer- tificates, if issued under the schedule of values described in Article 26 of the General Conditions, the amount allowed to the Contractor on account of the Subcontractor's work to the extent of the Subcontractor's interest therein. (f) To pay the Subcontractor, upon the issuance of cer- tificates, if issued otherwise than as in (e), so that at all times his total payments shall be as large in proportion to the value of the work done by him as the total amount certified to the Contractor is to the value of the work done by him. (g) To pay the Subcontractor to such extent as may be STANDARD DOCUMENTS 243 provided by the Contract Documents or the sub- contract, if either of these provides for earlier or larger payments than the above. ^h) To pay the Subcontractor on demand for his work or materials as far as executed and fixed in place, less the retained percentage, at the time the certifi- cate should issue, even though the Architect fails to issue it for any cause not the fault of the Sub- contractor. (j) To pay the Subcontractor a just share of any fire insurance money received by him, the Contractor, under Article 21 of the General Conditions. (k) To make no demand for liquidated damages or penalty for delay in any sum in excess of such amount as may be specifically named in the sub- contract. (1) That no claim for services rendered or materials furnished by the Contractor to the Subcontractor shall be valid unless written notice thereof is given by the Contractor to the Subcontractor during the first ten days of the calendar month following that in which the claim originated. (m) To give the Subcontractor an opportunity to be pres- ent and to submit evidence in any arbitration in- volving his rights. (n) To name as arbitrator under Article 45 of the Gen- eral Conditions the person nominated by the Sub- contractor, if the sole cause of dispute is the work, materials, rights or responsibilities of the Subcon- tractor; or, if of the Subcontractor and any other subcontractor jointly, to name as such arbitrator the person upon whom they agree. The Contractor and the Subcontractor agree that (o) In the matter of arbitration, their rights and obliga- tions and all procedure shall be analogous to those set forth in Article 45 of the General Conditions. Nothing in this Article shall create any obligation on 244 LAW OF ARCHITECTURE AND BUILDING the part of the Owner to pay to or to see to the payment of any sums to any Subcontractor. Art. 45. Arbitration. Subject to the provisions of Article 10, all questions in dispute under this contract shall be submitted to arbitration at the choice of either party to the dispute. The general procedure shall conform to the laws of the State in which the work lies and wherever permitted by law the decision of the arbitrators may be filed in court to carry it into effect. The demand for arbitration shall be filed in writing with the Architect, in the case of an appeal from his decision, within ten days of its receipt and in any other case within a reasonable time after cause thereof and in no case later than the time of final payment, except as to questions arising under Article 16. If the Architect fails to make a decision within a reasonable time, an appeal to arbitra- tion may be taken as if his decision had been rendered against the party appealing. The parties may agree upon one arbitrator; otherwise there shall be three, one named in writing by each party and the third chosen by these two arbitrators or, if they fail to select a third within ten days he shall be chosen by the presiding officer of the nearest Bar Association, Should the party demanding arbitration fail to name an arbitrator within ten days of his demand, his right to- arbitration shall lapse. Should the other party fail to choose an arbitrator within such ten days, the Architect shall appoint such arbitrator. Should either party refuse or neglect to supply the arbitrators with any papers or information demanded in writing, the arbitrators are em- powered by both parties to take ex parte proceedings. The arbitrators shall act with promptness. The deci- sion of any two shall be binding on all parties to the dis- pute. The decision of the arbitrators upon any question subject to arbitration under this contract shall be a condi- tion precedent to any right of legal action. STANDARD DOCUMENTS 245 The arbitrators, if they deem that the case demands it, are authorized to award to the party whose contention is sustained such sums as they shall deem proper for the time, expense and trouble incident to the appeal and, if the appeal was taken without reasonable cause, damages for delay. The arbitrators shall fix their own compensa- tion, unless otherwise provided by agreement and shall assess the costs and charges of the arbitration upon either or both parties. The award of the arbitrators must be in writing, and, if in writing, shall not be open to objection on account of the form of the proceedings or the award. THE STANDARD FORM OF BOND ISSUED BY THE AMERICAN INSTITUTE OF ARCHITECTS This form has been approved by the National Association of Builders' Exchanges, The National Association of Master Plumbers, and the National Association of Master Steam and Hot Water Fitters. Second Edition, Copyright 1915 by the American Institute of Architects, The Octagon, Washington, D. C. KNOW ALL MEN : That we (Here insert the name and address or legal title of the Contractor.) hereinafter called the Principal, and (Here insert the name and address or legal title of one or more sureties.) and and hereinafter called the Surety or Sureties are held and firmly bound unto (Here insert the name and address or legal title of the Owner.) hereinafter called the Owner, in the sum of ($ ) 246 LAW OF ARCHITECTURE AND BUILDING for the payment whereof the Principal and the Surety or Sureties bind themselves, their heirs, executors, adminis- trators, successors and assigns, jointly and severally, firmly, by these presents. Whereas, the Principal has, by means of a written Agree- ment dated . . entered into a contract with the Owner for a copy of which Agreement is by reference made a part hereof ; Now, Therefore, the Condition of this Obligation is such that if the Principal shall faithfully perform the Contract on his part, and satisfy all claims and demands, incurred for the same, and shall fully indemnify and save harmless the Owner from all cost and damage which he may suffer by reason of failure so to do, and shall fully reimburse and repay the Owner all outlay and expense which the Owner may incur in making good any such default, and shall pay all persons who have contracts directly with the Principal for labor or materials, then this obligation shall be null and void; otherwise it shall remain in full force and effect. Provided, however, that no suit, action or proceeding by reason of any default whatever shall be brought on this Bond after months from the day on which the final payment under the Contract falls due. And Provided, that any alterations which may be made in the terms of the Contract, or in the work to be done under it, or the giving by the Owner of any extension of time for the performance of the Contract, or any other forbearance on the part of either the Owner or the Principal to the other shall not in any way release the Principal and the Surety or Sureties, or either or any of them, their heirs, executors, administrators, successors or assigns from their liability hereunder, notice to the STANDARD DOCUMENTS 247 Surety or Sureties of any such alteration, extension or forbearance being hereby waived. Signed and Sealed this day of 19. . . . In Presence of (SEAL) as to (SEAL) as to . . (SEAL) -as to . . (SEAL) -as to THE STANDARD FORM OF SUBCONTRACT For use in connection with the General Conditions of the Contract as issued by the American Institute of Architects. This form has been approved by the National Association of Builders' Exchanges, The National Association of Master Plumbers, and the National Association of Master Steam and Hot Water Fitters. Copyright 1915 by the American Institute of Architects, The Octagon, Washington, D. C. THIS AGREEMENT, made this day of 19 by and between hereinafter called the Subcontractor and hereinafter called the Contractor. WITNESSETH, That the Subcontractor and Con- tractor for the considerations hereinafter named agree as follows : Section i. The Subcontractor agrees to furnish all material and perform all work as described in Section 2 hereof for (Here name the kind of building.) for (Here insert the name of the Owner.) hereinafter called the Owner, at (Here insert the location of the work.) 248 LAW OF ARCHITECTURE AND BUILDING in accordance with the General Conditions of the Con- tract between the Owner and the Contractor, and in ac- cordance with the Drawings and the Specifications pre- pared by hereinafter called the Architect, all of which General Conditions, Drawings and Specifications signed by the parties hereto or identi- fied by the Architect, form a part of a Contract between the Contractor and the Owner dated , 19 and hereby become a part of this Contract. Section 2. The Subcontractor and the Contractor agree that the materials to be furnished and work to be done by the Subcontractor are (Here insert a precise description of the work, preferably by reference to the numbers of the Drawings and the pages of the Specifications.) Section j. The Subcontractor agrees to complete the several portions and the whole of the work herein sublet by the time or times following : (Here insert the date or dates and if there be liquidated damages state them.) Section 4. The Contractor agrees to pay the Subcon- tractor for the performance of his work the sum of ($ ) in current funds, subject to additions and deductions for changes as may be agreed upon, and to make payments on account thereof in accordance with Section 5 hereof. Section 5. The Contractor and Subcontractor agree to be bound by the terms of the General Conditions, Draw- ings and Specifications as far as applicable to this sub- contract, including the provisions of Article 44 of the General Conditions of the Contract, as follows : The Subcontractor agrees : (a) To be bound to the Contractor by the terms of the General Conditions, Drawings and Specifications, and to assume toward him all the obligations and responsibilities that he, by those docu- ments, assumes toward the Owner. STANDARD DOCUMENTS 249 (&) To submit to the Contractor applications for payment in such reasonable time as to enable the Contractor to apply for payment under Article 26 of the General Conditions. (c) To make all claims for extras, for extensions of time and for damages for delays or otherwise, to the Contractor in the manner provided in the General Conditions for like claims by the Contractor upon the Owner, except that the time for making claims for extra cost as under Article 25 of the General Condi- tions, is one week. The Contractor agrees : (d) To be bound to the Subcontractor by all the obligations that the Owner assumes to the Contractor under the General Conditions, Drawings and Specifications, and by all the provi- sions thereof affording remedies and redress to the Contractor from the Owner. (e) To pay the Subcontractor, upon the issuance of certificates, if issued under the schedule of values described in Article 26 of the General Conditions, the amount allowed to the Contractor on account of the Subcontractor's work to the extent of the Sub- contractor's interest therein. (f) To pay the Subcontractor, upon the issuance of certificates, if issued otherwise than as in (e), so that at all times his total payments shall be as large in proportion to the value of the work done by him as the total amount certified to the Contractor is to the value of the work done by him. (#) To pay the Subcontractor to such extent as may be pro- vided by the Contract Documents or the Subcontract, if either of these provides for earlier or larger payments than the above. (/O To pay the Subcontractor on demand for his work or ma- terials as far as executed and fixed in place, less the retained percentage, at the time the certificate should issue, even though the Architect fails to issue it for any cause not the fault of the Subcontractor. (/) To pay the Subcontractor a just share of any fire insur- ance money received by him, the Contractor, under Article 21 of the General Conditions. (&) To make no demand for liquidated damages or penalty for delay in any sum in excess of such amount as may be specific- ally named in the Subcontract. (/) That no claim for services rendered or materials furnished by the Contractor to the Subcontractor shall be valid unless writ- ten notice thereof is given by the Contractor to the Subcontractor during the first ten days of the calendar month following that in which the claim originated. 250 LAW OF ARCHITECTURE AND BUILDING (tw) To give the Subcontractor an opportunity to be present and to submit evidence in any arbitration involving his rights. (w) To name as arbitrator under Article 45 of the General Con- ditions, the person nominated by the Subcontractor if the sole cause of dispute is the work, materials, rights or responsibilities of the Subcontractor; or, if of the Subcontractor and any other Subcontractor jointly, to name as such arbitrator the person upon whom they agree. The Contractor and the Subcontractor agree that: (0) In the matter of arbitration their rights and obligations and all procedure shall be analogous to those set forth in Article 45 of the General Conditions. Nothing in this Article shall create any obligation on the part of the Owner to pay to or to see to the payment of any sums to any Subcontractor. Section 6. Finally. The Subcontractor and Contractor, for them- selves, their heirs, successors, executors, administrators and assigns, do hereby agree to the full performance of the covenants herein contained. IN WITNESS WHEREOF they have hereunto set their hands the day and date first above written. In Presence of Subcontractor. Contractor. STANDARD FORM OF ACCEPTANCE OF SUBCONTRACTOR'S PROPOSAL For use in connection with the Standard Documents of the American Institute of Architects. This form has been approved by the National Association of Builders' Exchanges, The National Association of Master Plumbers, and the National Association of Master Steam and Hot Water Fitters. Copyright 1915 by the American Institute of Architects, The Octagon, Washington, D. C. DEAR SIR : Having entered into a contract with (Here insert the name and address or corporate title of the Owner.) STANDARD DOCUMENTS 251 for the erection of (Here insert the kind of work and the place at which it is to be erected.) in accordance with plans and specifications prepared by (Here insert the name and address of the Architect) and in accordance with the General Conditions of the Contract prefixed to the specifications, the undersigned hereby accepts your proposal of (Here insert date.) to provide all the materials and do all the work of (Here insert the kind of work to be done, as plumbing, roofing, etc., accurately describing by number, page, etc., the drawings and specifications governing such work.) The Undersigned agrees to pay you in current funds for the faithful performance of the subcontract established by this acceptance of your proposal the sum of ($ ) Our relations in respect of this subcontract are to be governed by the plans and specifications named above, by the General Conditions of the Contract as far as applica- ble to the work thus sublet and especially by Article 44 of those conditions printed on the reverse hereof. Very truly yours, AUTHORITY TO EXECUTE A CONTRACT OR BOND When the Contractor, the Owner or the Surety is a corporation, it is important that any Agreement or Bond executed by such corporation should be accompanied by a certificate, such as the following, showing that power so to sign is duly vested in those signing : "At a meeting of the Board of Directors of the duly notified and held in on , /p . . . , a quorum being present it was 252 LAW OF ARCHITECTURE AND BUILDING VOTED : That the be and he is hereby authorized and directed in the name and behalf of this Corporation, and under its corporate seal, to execute and deliver a contract with for a at for the sum of $ ; said contract to be in such form and subject to such con- ditions as said shall see fit. And said is hereby further authorised and directed in the name and behalf of this Corporation and under its corporate seal, to execute and deliver to said Owner any bond or bonds he may see fit for the performance of said contract by this Corporation. A True Copy. Attest: Secretary. The same form, with omission of last sentence, applies to the Owner. FORM OF INVITATION TO SUBMIT A PROPOSAL DEAR SIR: You are invited to submit a proposal for Drawings, Specifications and other information may be procured from this office on and after All documents must be returned to this office not later than To be entitled to consideration the proposal must be made upon the form provided by the Architect, which must be fully completed in accordance with the accom- panying "Instructions to Bidders" and must be delivered to this office not later than Very truly yours, STANDARD DOCUMENTS 253 FORM OF INSTRUCTIONS TO BIDDERS Proposals, to be entitled to consideration, must be made in accordance with the following instructions : Proposals shall be made upon the form provided there- for, and all blank spaces in the form shall be fully filled ; numbers shall be stated both in writing and in figures; the signature shall be in long hand; and the completed form shall be without interlineation, alteration or erasure. Proposals shall not contain any recapitulation of the work to be done. No oral, telegraphic or telephonic pro- posals or modifications will be considered. Proposals shall be addressed to the Owner, in care of the Architect, and shall be delivered to the Architect enclosed in an opaque sealed envelope addressed to him, marked "Proposal" and bearing the title of the work and the name of the Bidder. Should a bidder find discrepancies in, or omissions from, the drawings or documents, or should he be in doubt as to their meaning, he should at once notify the Archi- tect, who will send a written instruction to all bidders. Neither Owner nor Architect will be responsible for any oral instructions. Before submitting a proposal, bidders should carefully examine the drawings and specifications, visit the site or work, fully inform themselves as to all existing conditions and limitations and shall include in the Proposal a sum to cover the cost of all items included in the Contract. The competency and responsibility of bidders and of their proposed subcontractors will be considered in making the award. The Owner does not obligate himself to accept the lowest or any other bid. Provision will be made in the Agreement for payments on account in the following words : (Insert the provision). Any Bulletins issued during the time of bidding are to be covered in the proposal and in closing a contract they will become a part thereof. 254 LAW OF ARCHITECTURE AND BUILDING FORM OF PROPOSAL (The Proposal should be dated and addressed to the Owner in care of the Architect.) DEAR SIR: Having carefully examined the Instruc- tions to Bidders, the General Conditions of the Contract and Specifications entitled (Here insert the caption descriptive of the work as used therein.) and the Drawings, similarly entitled, numbered as well as the premises and the conditions affecting the work, the Undersigned proposes to furnish all materials and labor called for by them for (Here insert, in case all the work therein described is to be covered by one contract, "the entire work." In case of a partial contract insert name of the trade or trades to be covered and the numbers of the pages of the Specifications on which the work is described.) in accordance with the said documents for the sum of Dollars ($ ) and to execute a contract for the above work, for the above stated com- pensation in the form of the Standard Agreement of the American Institute of Architects (second edition), pro- vided that he be notified of the acceptance of this pro- posal within days of the time set for the submission of bids. Very truly yours, SUGGESTIONS TO ARCHITECTS USING THE ABOVE FORM OF PROPOSAL The above form includes only such statements as will probably be required in any Proposal. Additions will usually have to be made to it. Suggestions suited to cer- tain conditions are offered in the following notes. If the Bidder is to name the time required for com- pleting the work, insert such a clause as the following : The Undersigned agrees, if awarded the Contract, to complete it within days, Sundays and whole holidays not included. STANDARD DOCUMENTS 255 If liquidated damages are to be required, insert the following : And further agrees that, from the compensation other- wise to be paid, the Owner may retain the sum of dollars ($ ) for each day thereafter, Sundays and whole holidays not included, that the work remains un- completed, which sum is agreed upon as the proper meas- ure of liquidated damages which the Owner will sustain per diem by the failure of the undersigned to complete the work at the time stipulated, and this sum is not to be construed as in any sense a penalty. If a bond is required, insert the following: The Undersigned agrees, if awarded the Contract, to execute and deliver to the Architect within days after the signing of the Contract, a satisfactory bond in the form issued by the American Institute of Architects (second edition) and in the sum of , extending from the time of signature for months from the day on which the final payment under the contract falls due, and further agrees that if such bond be not required, he will deduct from the proposal price the sum of dollars ($ ). If a certified check is required, the following clause should be inserted : The Undersigned further agrees that the certified check payable to Owner, accompanying this proposal, is left in escrow with the Architect; that its amount is the measure of liquidated damages which the Owner will sustain by the failure of the Undersigned to execute and deliver the above named Agreement and bond, and that if the Undersigned defaults in executing that Agreement within days of written notifi- cation of the award of the contract to him or in furnish- ing the Bond within days thereafter, then the check shall become the property of the Owner, but if this proposal is not accepted within days of the time set for the submission of bids, or if the Undersigned 256 LAW OF ARCHITECTURE AND BUILDING executes and delivers said Contract and Bond, the check shall be returned to him on receipt therefor. If alternative proposals are required, they should be set forth, as for example, Should be substituted for the Undersigned agrees to deduct (or will require the ad- dition of) dollars ($ ) from (or to) the proposed sum. If unit prices are required as a part of the proposal, they should be set forth as, for example : The Undersigned agrees that work added shall be com- puted at the following prices, and that work omitted shall be computed at per cent less than these prices. Concrete foundations per cubic yard, Rough brickwork per thousand, Plastering per yard. If the names of subcontractors whom the Contractor proposes to employ are required as a part of the Proposal this requirement should be set forth, as, for example : In case of obtaining the award the Undersigned will employ, subject to the Architect's approval, subcontractors in each of the several trades selected from the following list (one or more names must be inserted for each trade) : Excavation Stone Masonry Brickwork etc., etc. (Published by special permission and courtesy of the American Institute of Architects.) THE AMERICAN, INSTITUTE OF ARCHITECTS PROFESSIONAL PRACTICE OF ARCHITECTS SCHEDULE OF PROPER MINIMUM CHARGES 1. The architect's professional services consist of the necessary conferences, the preparation of preliminary studies, working drawings, specifications, large scale and full size detail drawings, and of the general direction and supervision of the work, for which, except as hereinafter mentioned, the minimum charge, based upon the total cost * of the work complete is six per cent. 2. On residential work, alterations to existing build- ings, monuments, furniture, decorative and cabinet work and landscape architecture, it is proper to make a higher charge than above indicated. 3. The architect is entitled to compensation for articles purchased under his direction, even though not designed by him. 4. If an operation is conducted under separate con- tracts, rather than under a general contract, it is proper to charge a special fee in addition to the charges men- tioned elsewhere in this schedule. 5. Where the architect is not otherwise retained, con- sultation fees for professional advice are to be paid in * The total cost is to be interpreted as the cost of all materials and labor necessary to complete the work, plus contractors' profits and expenses, as such cost would be if all materials were new and all labor fully paid, at market prices current when the work was ordered. 257 258 LAW OF ARCHITECTURE AND BUILDING proportion to the importance of the question involved and services rendered. 6. Where heating, ventilating, mechanical, structural, electrical and sanitary problems are of such a nature as to require the services of a specialist, the owner is to pay for such services. Chemical and mechanical tests and surveys, when required, are to be paid for by the owner. 7. Necessary traveling expenses are to be paid by the owner. 8. If, after a definite scheme has been approved, changes in drawings, specifications or other documents are required by the owner; or if the architect be put to extra labor or expense by the delinquency or insolvency of a contractor, the architect shall be paid for such addi- tional services and expense. 9. Payments to the architect are due as his work pro- gresses in the following order: Upon completion of the preliminary studies, one-fifth of the entire fee; upon completion of specifications and general working draw- ings (exclusive of details), two-fifths additional, the re- mainder being due from time to time in proportion to the amount of service rendered. Until an actual estimate is received, charges are based upon the proposed cost of the work and payments received are on account of the entire fee. 10. In case of the abandonment or suspension of the work, the basis of settlement is to be as follows: For preliminary studies, a fee in accordance with the charac- ter and magnitude of the work ; for preliminary studies, specifications and general working drawings (exclusive of details), three-fifths of the fee for complete services. 11. The supervision of an architect (as distinguished from the continuous personal superintendence which may be secured by the employment of a clerk-of-the- works or superintendent of construction) means such in- spection by the architect or his deputy, of work in stu- PRACTICE AND CHARGES OF A. I. A. 259 dios and shops or a building or other work in process of erection, completion or alteration, as he finds necessary to ascertain whether it is being executed in general con- formity with his drawings and specifications or direc- tions. He has authority to reject any part of the work which does not so conform and to order its removal and reconstruction. He has authority to act in emergencies that may arise in the course of construction, to order necessary changes, and to define the intent and meaning of the drawings and specifications. On operations where a clerk-of -the- works or superintendent of construction is required, the architect shall employ such assistance at the owner's expense. 12. Drawings and specifications, as instruments of service, are the property of the architect. As revised at the Washington Convention, December 15-17, 1908. OFFICE OF THE Secretary, The Octagon, Washington, D. C. February, 1914 APPENDIX D A. I. A. Document 107 (Published by special permission and courtesy of the American Institute of Architects.) A CIRCULAR OF ADVICE RELATIVE TO PRINCIPLES OF PROFESSIONAL PRACTICE THE CANONS OF ETHICS THE AMERICAN INSTITUTE OF ARCHITECTS Office of the Secretary, TEe Octagon, Washington, D. C., February, 1915. A CIRCULAR OF ADVICE THE AMERICAN INSTITUTE OF ARCHITECTS, seeking to maintain a high standard of practice and conduct on the part of its members as a safeguard of the important financial, technical and esthetic interests entrusted to them, offers the following advice relative to professional practice : The profession of architecture calls for men of the highest integrity, business capacity and artistic ability. The architect is entrusted with financial undertakings in which his honesty of purpose must be above suspicion; he acts as professional adviser to his client and his advice must be absolutely disinterested ; he is charged with the exercise of judicial functions as between client and con- tractors and must act with entire impartiality; he has moral responsibilities to his professional associates and subordinates ; finally, he is engaged in a profession which carries with it grave responsibility to the public. These duties and responsibilities cannot be properly discharged unless his motives, conduct and ability are such as to com- mand respect and confidence. No set of rules can be framed which will particularize 260 CIRCULAR OF ADVICE A, I. A. 261 all the duties of the architect in his various relations to his clients, to contractors, to his professional brethren, and to the public. The following principles should, how- ever, govern the conduct of members of the profession and should serve as a guide in circumstances other than those enumerated. 1. On the Architect's Status. The architect's relation to his client is primarily that of professional adviser ; this relation continues throughout the entire course of his service. When, however, a contract has been executed between his client and a contractor by the terms of which the architect becomes the official interpreter of its condi- tions and the judge of its performance, an additional rela- tion is created under which it is incumbent upon the architect to side neither with client nor contractor, but to use his powers under the contract to enforce its faithful performance by both parties. The fact that the architect's payment comes from the client does not invalidate his obligation to act with impartiality to both parties. 2. On Preliminary Drawings and Estimates. The ar- chitect at the outset should impress upon the client the importance of sufficient time for the preparation of draw- ings and specifications. It is the duty of the architect to make or secure preliminary estimates when requested, but he should acquaint the client with their conditional char- acter and inform him that complete and final figures can be had only from complete and final drawings and specifi- cations. If an unconditional limit of cost be imposed be- fore such drawings are made and estimated, the architect must be free to make such adjustments as seem to him necessary. Since the architect should assume no re- sponsibility that may prevent him from giving his client disinterested advice, he should not, by bond or otherwise, guarantee any estimate or contract. j. On Superintendence and Expert Services. On all work except the simplest, it is to the interest of the owner to employ a superintendent or clerk of the works. In 262 LAW OF ARCHITECTURE AND BUILDING many engineering problems and in certain specialized esthetic problems, it is to his interest to have the services of special experts and the architect should so inform him. The experience and special knowledge of the architect make it to the advantage of the owner that these persons, although paid by the owner should be selected by the ar- chitect under whose direction they are to work. 4. On the Architect's Charges. The Schedule of Charges of the American Institute of Architects is recog- nized as a proper minimum of payment. The locality or the nature of the work, the quality of services to be rendered, the skill of the practitioner or other circum- stances frequently justify a higher charge than that indi- cated by the Schedule. 5. On Payment for Expert Service. The architect when retained as an expert, whether in connection with competitions or otherwise, should receive a compensation proportionate to the responsibility and difficulty of the service. No duty of the architect is more exacting than such service, and the honor of the profession is involved in it. Under no circumstances should experts knowingly name prices in competition with each other. 6. On Selection of Bidders or Contractors. The ar- chitect should advise the client in the selection of bidders and in the award of the contract. In advising that none but trustworthy bidders be invited and that the award be made only to contractors who are reliable and competent, the architect protects the interests of his client. 7. On Duties to the Contractor. As the architect decides whether or not the intent of his plans and specifi- cations is properly carried out, he should take special care to see that these drawings and specifications are com- plete and accurate, and he should never call upon the con- tractor to make good oversights or errors in them nor attempt to shirk responsibility by indefinite clauses in the contract or specifications. 8. On Engaging in the Building Trades. The architect CIRCULAR OF ADVICE A. I. A. 263 should not directly or indirectly engage in any of the building trades. If he has any financial interest in any building material or device, he should not specify or use it without the knowledge and approval of his client. p. On Accepting Commissions or Favors. The archi- tect should not receive any commission or any substantial service from a contractor or from any interested person other than his client. 10. On Encouraging Good Workmanship. The large powers with which the architect is invested should be used with judgment. While he must condemn bad work, he should commend good work. Intelligent initiative on the part of craftsmen and workmen should be recognized and encouraged and the architect should make evident his appreciation of the dignity of the artisan's function. 11. On Offering Services Gratuitously. The seeking out of a possible client and the offering to him of profes- sional services on approval and without compensation, unless warranted by personal or previous business rela- tions, tends to lower the dignity and standing of the pro- fession and is to be condemned. 12. On Advertising. Advertising tends to lower the dignity of the profession and is therefore condemned. /j. On Signing Buildings and Use of Titles. The dis- play of the architect's name upon a building under con- struction is condemned, but the unobtrusive signature of buildings after completion has the approval of the Insti- tute. The use of initials designating membership in the Institute is proper in connection wth any professional service and is to be encouraged as helping to make known the nature of the honor they imply. 14. On Competitions. An architect should not take part in a competition as a competitor or juror unless the competition is to be conducted according to the best prac- tice and usage of the profession, as evidenced by its having received the approval of the Institute, nor should he continue to act as professional adviser after it has been 264 LAW OF ARCHITECTURE AND BUILDING determined that the program cannot be so drawn as to receive such approval. When an architect has been authorized to submit sketches for a given project, no other architect should submit sketches for it until the owner has taken definite action on the first sketches, since, as far as the second architect is concerned, a competition is thus established. Except as an authorized competitor, an architect may not attempt to secure work for which a com- petition has been instituted. He may not attempt to in- fluence the award in a competition in which he has sub- mitted drawings. He may not accept the commission to do the work for which a competition has been instituted if he has acted in an advisory capacity either in drawing the program or in making the award. 15. On Injuring Others. An architect should not falsely or maliciously injure, directly or indirectly, the professional reputation, prospects or business of a fellow architect. 16. On Undertaking the Work of Others. An archi- tect should not undertake a commission while the claim for compensation or damages or both, of an architect previously employed and whose employment has been terminated remains unsatisfied, unless such claim has been referred to arbitration or issue has been joined at law ; or unless the architect previously employed neglects to press his claim legally; nor should he attempt to supplant a fellow architect after definite steps have been taken toward his employment. 77. On Duties to Students and Draughtsmen. The architect should advise and assist those who intend making architecture their career. If the beginner must get his training solely in the office of an architect, the latter should assist him to the best of his ability by instruction and advice. An architect should urge his draughtsmen to avail themselves of educational opportunities. He should, as far as practicable, give encouragement to all worthy agencies and institutions for architectural educa- CANONS OF ETHICS 205 tion. While a thorough technical preparation is essential for the practice of architecture, architects cannot too strongly insist that it should rest upon a broad founda- tion of general culture. 18. On Duties to the Public and to Building Authori- ties. An architect should be mindful of the public wel- fare and should participate in those movements for public betterment in which his special training and experience qualify him to act. He should not, even under his client's instructions, engage in or encourage any practices con- trary to law or hostile to the public interest ; for as he is not obliged to accept a given piece of work, he cannot, by urging that he has but followed his client's instruc- tions, escape the condemnation attaching to his acts. An architect should support all public officials who have charge of building in the rightful performance of their legal duties. He should carefully comply with all build- ing laws and regulations, and if any such appear to him unwise or unfair, he should endeavor to have them altered. 19. On Professional Qualifications. The public has the right to expect that he who bears the title of architect has the knowledge and ability needed for the proper invention, illustration and supervision of all building operations which he may undertake. Such qualifications alone justify the assumption of the title of architect. THE CANONS OF ETHICS The following Canons are adopted by the American Institute of Architects as a general guide, yet the enumera- tion of particular duties should not be construed as a denial of the existence of others equally important al- though not specially mentioned. It should also be noted that the several sections indicate offenses of greatly vary- ing degrees of gravity. It is unprofessional for an architect 266 LAW OF ARCHITECTURE AND BUILDING 1. To engage directly or indirectly in any of the build- ing trades. 2. To guarantee an estimate or contract by bond or otherwise. 3. To accept any commission or substantial service from a contractor or from any interested party other than the owner. 4. To advertise. 5. To take part in any competition which has not re- ceived the approval of the Institute or to continue to act as professional adviser after it has been determined that the program cannot be so drawn as to receive such ap- proval. 6. To attempt in any way, except as a duly authorized competitor, to secure work for which a competition is in progress. 7. To attempt to influence, either directly or indirectly, the award of a competition in which he is a competitor. 8. To accept the commission to do the work for which a competition has been instituted if he has acted in an advisory capacity, either in drawing the program or in making the award. 9. To injure falsely or maliciously, directly or indi- rectly, the professional reputation, prospects or business of a fellow architect. 10. To undertake a commission while the claim for compensation, or damages, or both, of an architect pre- viously employed and whose employment has been ter- minated remains unsatisfied, until such claim has been referred to arbitration or issue has been joined at law, or unless the architect previously employed neglects to press his claim legally. 11. To attempt to supplant a fellow architect after definite steps have been taken toward his employment, e. g., by submitting sketches for a project for which another architect has been authorized to submit sketches. CANONS OF ETHICS 267 12. To compete knowingly with a fellow architect for employment on the basis of professional charges. Adopted December 14-16, 1909. Revised December 10-12, 1912. APPENDIX E (Published by special permission and courtesy of the New York Chapter of the American Institute of Architects.) SCHEDULE OF CHARGES APPROVED BY THE NEW YORK CHAPTER OF THE AMERICAN INSTITUTE OF ARCHITECTS SUPPLEMENTARY TO THE STATEMENT OF PROFESSIONAL PRACTICE OF ARCHITECTS AND SCHEDULE OF PROPER MINIMUM CHARGES OF THE AMERICAN INSTITUTE OF ARCHITECTS ADOPTED DEC. IS-I7, I9O8. The New York Chapter of the American Institute of Architects as a professional body, recognizing that the value of an Architect's services varies with his experience, ability, and the locality and character of the work upon which he is employed, does not establish a rate of com- pensation binding upon its members, but it is the judg- ment of the New York Chapter that for full professional services adequately rendered, an architect practicing in the City of New York should receive as reasonable re- muneration therefor at least the compensation mentioned in the following schedule of charges : i. The Architect's professional services consist of the necessary conferences, the preparation of prelimi- nary studies, working drawings, specifications, large scale and full size detail drawings, and of the gen- eral direction and supervision of the work, for which, except as hereinafter mentioned, the mini- mum charge, based upon the total cost of the work complete, as established by the American Institute of Architects, 1908, is : 6 per cent. 268 SCHEDULE OF CHARGES, N. Y. CHAPTER A. I. A. 269 2. Residential Work: Private dwellings within the limits of the City of New York, On the first $50,000 of cost . . 8 per cent. On the balance of cost, the minimum fee of . 6 per cent. Private dwellings outside of the City of New York, including stables and other dependencies. On the first $50,000 of cost . . 10 per cent. On the balance of cost .... 8 per cent. The graduated commission applies only to the above two classes of residential work. 3. Monumental, decorative and landscape work, special interior and cabinet work, alterations to existing buildings. In all cases whether in connection with Federal, Municipal, or other work . 10 per cent. 4. Designs for fabrics, furniture and fixtures, lighting fixtures, and special decorative work 15 per cent. 5. Articles not designed by the architect but purchased under his direction 6 per cent. 6. All disbursements for travelling expenses, measure- ments, surveys, fees for expert advice when re- quested or sanctioned by the client, and the cost of all prints, to be paid for by the client. 7. All of the above charges are subject to increase by special arrangement, where the cost of the work is small or the conditions unusually difficult. 8. By special interiors and cabinet work, is meant that part of the work which is individual, requiring special study and drawings for each room or each feature thereof, as distinguished from the work which is repetitious and which can be executed from typical drawings and general specifications. 9. The supervision of an architect does not guarantee the performance of the contract by the contractor, 270 LAW OF ARCHITECTURE AND BUILDING or insure the client against defective work there- under. 10. The Schedule of the American Institute of Archi- tects, shall govern in all cases not covered by the foregoing Schedule. F. H. HOLDEN, Secretary, New York Chapter, A. I. A. Adopted, January 8th, 1910. Copyright 1910, by the New York Chapter of the American Institute of Architects FORMS FORMS (See also Appendix B) As stated in the introduction, it has seemed best to give, in addition to the forms included in Appendix B, a number of the more usual and im- portant forms required in lien proceedings. The forms here given deal primarily with the early steps, preliminary to or upon the institution of a lien action. For other forms dealing with later proceedings, or forms less intimately connected with the rights of the architect, owner and con- tractor, reference may be made to any standard form books or special text books on lien litigation. The following forms are selected largely from forms used in actual litigation. They should, of course, be adapted to the special circumstances of the cases in which use may be made of them. NOTICE OF LIEN (A) AND COMPLAINT (B) (in action to foreclose lien where work has been performed at request of lessee of a portion of premises of an office building, apartment house or similar structure, and where architect has fur- nished special materials, in addition to preparing plans and specifications. ) 273 274 LAW OF ARCHITECTURE AND BUILDING (A) NOTICE OF LIEN To the Clerk of the County of New York, State of New York: TAKE NOTICE, that I, A . . . . , residing in the City of , County of , and State of , with offices at No ., Avenue, Borough of Man- hattan, City, County and State of New York, have and claim a lien for the principal and interest of the value and agreed price of the labor and materials hereinafter mentioned, upon the real property and upon the im- provements hereinafter mentioned, pursuant to the Lien Law and the Acts amendatory thereof and supplemental thereto; and I do further state and allege as follows, to wit, that I. The name of the owner of the real property against whose interest a lien is claimed is, B Its address and principal office is at No Avenue, in the Borough of Manhattan, City and State of New York. A lien is likewise claimed against the fee of said property and the interest therein, if any, of C. and D , all as hereinafter stated. II. The names of the corporation and of the person by which and by whom I was employed and to which and to whom I furnished the labor and materials are: C . . . . and D The address of said C . . . . is No. Avenue, Borough of Manhattan, City and State of New York, and the address of said D is, No Avenue, Borough of Manhattan, City and State of New York. III. The labor performed, materials furnished and the agreed prices thereof are as follows : Services as architect in the superintendence and prep- aration of plans and specifications, the preparation and furnishing of designs for and the furnishing and instal- lation of especially designed electric-lighting fixtures in connection with, and the superintendence and supervision FORMS 275 as architect of, certain alterations and 'improvements in and to and the out-fitting of the offices occupied and leased by C. . . . and situate on the Sixth floor of the building known as No Avenue, Borough of Manhattan, City and State of New York, the fore- going including the supervision by me and the superin- tendence by me as architect of all of said work, the mak- ing of said alterations, the designing and installation of said fixtures, the carrying out of the work done pursu- ant to said plans and specifications, and all of the details of the work above referred to. Said services were performed at the request of said C. ... ., and D. . . ., and for said services, said C. . . . and said D.... jointly and severally expressly cove- nanted and agreed to make payment to me as follows, viz.: For so much of said services as were exclusive of the furnishing of the said lighting fixtures the sum of dollars ; and for the furnishing and installa- tion of said lighting fixtures and the superintendence thereof, the additional sum of dollars. IV. The amount unpaid and owing to me for said la- bor and materials aforesaid at the time of the filing of this Notice of Lien is the sum of dollars. Said labor and materials were and are reasonably worth and of the reasonable value of the said sum of dollars. V. On information and belief, the time when the first item of work was performed was the 2oth day of Sep- tember, 1913, and the time when the last item of work was performed was the 7th day of November, 1913. Ninety days have not elapsed since the last item of said work, for which this lien is claimed, was performed. The work on said premises is entirely performed at the present time. VI. On information and belief, the property subject to this lien, and upon which I claim a lien, is described as follows, viz: ALL that plot, piece or parcel of land in the City, 276 LAW OF ARCHITECTURE AND BUILDING County and State of New York, with the buildings and improvements thereon erected and situate, bounded and described as follows, to wit : (Insert detailed description by metes and bounds, with diagram if practicable.) VII. This lien is claimed upon the fee of said premises and upon the buildings and improvements there- on erected, situate, or made, with any and all appur- tenances thereto and against any and all interest and es- tates of said B. . . . and C. . . . and D. . . ., and any and all of them, in or to or concerning said premises and the said improvements and appurtenances. VIII. Said labor was performed and said materials were furnished with the express knowledge, consent and approval of said B...., the owner of the fee of said premises. IX. All the labor performed and materials furnished herein have been performed and furnished in the manner and for the purposes herein set forth, and for the im- provement of the said real property. Dated, New York City, January , 1914. A...., Lienor. STATE OF NEW YORK 1 COUNTY OF NEW YORK J A . . . . , being duly sworn, deposes and says : that he is the claimant and lienor mentioned in the foregoing No- tice of Lien; that he has read said Notice, and knows the contents thereof, and that the same is true of his own knowledge, except as to the matters therein stated to be alleged upon information and belief, and that as. to those matters, he believes it to be true. Sworn to before me, this day of January, 1914. A (Signature, title, etc., of notary.) FORMS 277 (B) COMPLAINT City Court of the City of New York A., Plaintiff, against -COMPLAINT. B , C , D , and E , Defendants. The plaintiff above named complaining of the defend- ants above named, by , his attorneys, respectfully shows to the Court as follows : FIRST : On information and belief, that at all the times hereinafter mentioned the defendant B . . . . was and still is a corporation organized and existing under and by virtue of the Laws of the State of New York, and was and is the owner of the following real property situ- ate in the Borough of Manhattan, City, County and State of New York, and more particularly bounded and de- scribed as follows, to wit : (Insert detailed description of property by metes and bounds.) together with the building on said property erected and situate and known as No Avenue, in said Bor- ough of Manhattan, City of New York. On information and belief, that at all the times here- inafter mentioned the defendant C. was and is a cor- poration organized and existing under and by virtue of the laws of the State of and the defendant D . . . . was and is an officer, to wit : the , of the said de- fendant C SECOND : On information and belief, that on or about the loth day of September, 1913, the defendant B executed and delivered a lease of and leased a portion of the Sixth floor of the said building erected and situate on the aforesaid premises and owned by said B. . . ., to the defendant C . . . . , and said defendant C . . . . , there- 278 LAW OF ARCHITECTURE AND BUILDING upon entered into and has since continued in possession of said leased portion of said premises and was in pos- session thereof as said tenant at the time when plaintiff was employed by the defendants and the work, labor, services and materials herein referred to were performed and furnished, all as hereinafter stated. THIRD: That on or about and between the 2oth day of September, 1913, and the 7th day of November, 1913, plaintiff, at the special instance and request of the de- fendants, C and D. . . ., and with the express knowl- edge, consent and approval of the owner, the defendant B , furnished certain labor and materials in and con- cerning the said real property and the said building thereon erected and situate as aforesaid, as follows, to wit: Performed services as an architect in the superintend- ence and preparation of plans and specifications, the preparation and furnishing of designs for and the fur- nishing and installation of especially designed electric- lighting fixtures, in connection with, and the superintend- ence and supervision by plaintiff as architect of, certain alterations and improvements in and to, and the out- fitting, in accordance with said plans, specifications and designs, of the said portion of said building and premises leased as aforesaid to said defendant C. . . ., by said de- fendant B . . . . , which said services necessitated and in- cluded the supervision and superintendence by plaintiff as architect of all of said work, including superintend- ence by plaintiff of the making of said alterations in accordance with said plans and specifications, of the choice and installation and furnishing of said fixtures, and of all the details of the improvements and work herein referred to. FOURTH: That said services, labor and materials aforesaid exclusive of the designing and furnishing and superintendence of the installation of the electric-light- ing fixtures herein referred to, were reasonably worth FORMS 279 the sum of Dollars, which said sum the defend- ants, B . . . . and C . . . . , duly promised and agreed to pay to plaintiff therefor; that the preparation of designs for and the furnishing and installation and superintendence of the furnishing and installation of said electric-light- ing fixtures, and the said fixtures themselves, were reason- ably worth the additional sum of Dollars, which said sum said defendants, B . . . . and C . . . . , duly promised and agreed to pay plaintiff therefor. FIFTH: That plaintiff has duly performed and ful- filled all the work, conditions and covenants of said con- tract and agreement on his part to be performed but that no part of said sum of Dollars and no part of said sum of Dollars has been paid and that the whole of each of said sums is now justly due and owing from the defendants to plaintiff. SIXTH : That the labor and materials performed and furnished and herein referred to, were actually used in and upon and for the improvement of the said property and building aforesaid and that said building and prop- erty have been enhanced in value thereby. SEVENTH : That on the day of January, 1914, and within ninety days after the completion of the con- tract above set forth, the plaintiff filed a notice of lien in writing in the clerk's office of the County of New York, State of New York, the County in which the prop- erty aforesaid against which a lien is asserted is situ- ated, on and against the said real property for the aggre- gate amount of and sum due to plaintiff for said labor and materials aforesaid, to wit : the sum of Dol- lars; that said notice of lien contained the name of the owner of said real property against whose interest the lien was claimed and the nature of his interest, the name of the person and corporation by whom plaintiff was employed and to whom and to which he furnished the labor and materials and against whose interest the lien was claimed, the labor performed, materials furnished, 2&> LAW OF ARCHITECTURE AND BUILDING and the agreed prices thereof, the amount unpaid, the time when the first and last items of work and materials were performed and furnished, and also a description of the property to be charged with the lien in all ways suffi- cient for identification; that said notice of lien was duly verified and complied in all respects with the require- ments of the statutes in such case made and provided, and that on the day of January, 1914, said lien was duly entered and docketed by said clerk in the lien docket kept in his office; that a copy of said notice of lien is hereto annexed and marked Exhibit A and made a part of this complaint. EIGHTH : On information and belief, that on the day of January, 1914, and after filing his notice of lien as hereinbefore set forth, plaintiff caused copies of said notice to be and the same were duly served upon the de- fendant B . . . . , the owner of said building and property aforesaid, and the defendants, C.... and D...., re- spectively. NINTH : That no other persons have filed liens against said property nor have subsequent liens or claims by judgment, mortgage or conveyance, except the defend- ant E . . . . , which is the holder of a mortgage on said premises dated , and due , for the sum of Dollars. TENTH : That no other action or proceeding has been brought or commenced or is pending at law or otherwise upon the debt hereinbefore referred to or to enforce any of the rights and obligations hereinbefore set forth, or to recover said debt or any part thereof, and that no part of said debt or of the amount herein claimed has been paid or collected. WHEREFORE, plaintiff demands judgment: i. That the priority of all liens and claims on said property be determined and the rights of the respective parties hereto be duly adjudicated. FORMS 281 2. That he be adjudged to have a lien on said property for the sum of Dollars. 3. That the defendant B . . . . , and all persons claiming under it be foreclosed of all equity of redemption or other interest in said premises. 4. That the interest in said premises of the defendants, B. . . . and C. . . ., be sold as provided by law and that from the proceeds of such sale the plaintiff be paid the amount of his lien as aforesaid and interest thereon from the 7th day of November, 1913, together with the costs of sale and the costs of this action. 5. That plaintiff have personal judgment against the defendants, B , C and D. . . ., and each of them, in the sum of ...... Dollars, together with interest thereon from said November 7th, 1913, and for any de- ficiency that may remain due him after such sale. 6. That plaintiff may have such other or further judg- ment, decree, order or adjudication as may be necessary to protect his rights in the premises or as may to the Court seem just and proper. Attorneys for Plaintiff, Office and Post office address, No. 2 Rector Street, Borough of Manhattan, New York City. STATE OF NEW YORK 1 rSS COUNTY OF NEW YORK] A , being duly sworn, deposes and says: That he is the plaintiff in this action ; that he has read the foregoing complaint and knows the contents thereof and that the same is true of his own knowledge, except as to the matters therein stated to be alleged upon in forma- 282 LAW OF ARCHITECTURE AND BUILDING tion and belief and that as to those matters, he believes it to be true. Sworn to before me this Day of , 1914. (Notary's signature, title, etc.) A (Exhibit A. annexed) NOTICE OF LIEN (A) AND COMPLAINT (B) (where work performed has been in connection with private residence. ) (A) NOTICE OF LIEN To the Clerk of the County of Westchester, State of New York: TAKE NOTICE, that I, A. ... ., residing at the City of , County of ....... and State of , with of- fices at No Broadway, in the Borough of Man- hattan, City and State of New York, have and claim a lien for the principal and interest of the value and agreed price of the labor and materials hereinafter mentioned and the disbursements hereinafter mentioned, upon the real property and upon the improvements hereinafter men- tioned, pursuant to the Lien Law and the Acts amenda- tory thereof and supplemental thereto, and I do further state and allege, as follows, viz.: that I. The name of the owner of the real property against whose interest a lien is claimed, is, on information and belief, B Her address is No Street, Yon- kers, New York. A lien is likewise claimed against the fee of said property, and the interest therein, if any, of C . . . . , all as hereinafter stated. II. The name of the persons by whom I was em- ployed and to whom I furnished the labor and materials are B . . . . , and C . . . . , the husband of said B The FORMS 283 address of each of said persons is No Street, Yonkers, New York. III. The labor performed and materials furnished and the agreed price thereof are as follows, to wit : Architectural services in the matter of the erection upon the premises described in paragraph VI hereof of a residence for said B . . . . and C . . . . , consultations re- garding, and the preparation of all plans and specifica- tions therefor; general and detailed consultations with said B . . . . and C . . . . in regard to and personal and de- tailed supervision on said premises of, the erection, con- struction and completion of said residence and building thereon; superintendence of all construction work, and general supervision and superintendence of all work in the matter of the erection of said residence in accordance with the said plans and specifications, including all changes, alterations and additions. Said services were performed at the request of said B. . . . and C. . . . and upon the terms, both as to payment, agreed price and charges, which are set forth and appear in the contract, a copy of which is hereto annexed and marked Exhibit I and made a part hereof. The work on said premises is entirely performed, the building is completed and the final architect's certificate has been is- sued. In addition to the labor performed as aforesaid, necessary disbursements have been paid out by me in connection with said labor and services, in the amount of $ IV. The amount unpaid and owing to me for such labor aforesaid is $ at the time of filing this no- tice, and for such disbursements aforesaid $ , all as more fully appears from the statement of account hereto annexed and marked Exhibit II. Such labor was and is reasonably worth and of the reasonable value of said sum of $ V. On information and belief, the time when the first item of work was performed was the day of 284 LAW OF ARCHITECTURE AND BUILDING August, 1909. The time when the last item of work was performed was the day of May, 1911. Ninety days have not elapsed, dating from the last item of work performed, for which this lien is claimed. VI. On information and belief, the property subject to this lien and upon which I claim a lien, is more partic- ularly bounded and described as follows, to wit : (Take in detailed description of property by metes and bounds with diagram if practicable.) VII. This lien is claimed upon the fee of said prem- ises and upon all the improvements and buildings thereon made or erected, together with any and all appurtenances thereto, and against any and all interest of said B . . . . and C. . . . and either and both of them, in and to and concerning said premises and the said improvements and appurtenances. Said labor and services were performed and materials furnished, as hereinbefore stated, at the request of said B. . . . and C. . . . and with their knowl- edge and consent, and under and pursuant to the said express contract and agreement between the undersigned lienor and said B. . . . and C. . . ., a copy of which is hereto annexed and marked Exhibit I, and made a part hereof as aforesaid. VIII. All the labor for which this lien is claimed has been actually furnished, completed and performed, and all said labor was performed in the manner and for the purposes herein set forth and for the improvement of the said real property hereinbefore described, and the undersigned lienor has performed and complied with each and all of the covenants and conditions by him to be performed and complied with under the terms of said contract. Dated, New York, N. Y., May , 1911. A Lienor. FORMS 285 STATE OF NEW YORK COUNTY OF NEW YORK A . . . . , being duly sworn, says that he is the claimant and lienor mentioned in the foregoing notice of lien; that he has read said notice and knows the contents thereof ; and that the same is true of his own knowledge, except as to the matters therein stated to be alleged upon information and belief, and that as to those matters he believes it to be true. Sworn to before me, this day of May, 1911. A (Notary's signature, title, etc.) (Annex Exhibit.) (B) COMPLAINT New York Supreme Court, County of Westchester A , Plaintiff, against B , C and D , Defendants. ^COMPLAINT. The plaintiff above named, for his complaint in the above entitled action, by , his attorneys, alleges and respectfully shows to the Court: FIRST: On information and belief: that at all the times hereinafter mentioned, the defendant B . . . . was and still is the owner of the following real property, sit- uate in the City of Yonkers, in the County of Westches- ter and State of New York, and more particularly bounded and described as follows, to wit: (Insert detailed description by metes and bounds.) SECOND: On information and belief, that the de- 286 LAW OF ARCHITECTURE AND BUILDING fendant C is the husband of said defendant B. . . ., and that the defendant D. . . . is the holder of a mechan- ic's lien against the above mentioned premises and the in- terest therein of said B . . . . which lien is in the amount and of the character specified in the paragraph hereof designated Seventh and that said D . . . . is made a party hereto accordingly. THIRD: That on or about the ist day of August, 1909, plaintiff and the defendants, B.... and C...., above named, duly made and entered into a contract and agreement in writing, a copy of which is hereto annexed and marked Exhibit A and made a part hereof, wherein and whereby the said defendants, B . . . . and C . . . . , duly agreed to employ, and did employ, plaintiff as architect to consult with them regarding and to prepare and revise sketches and specifications and plans and drawings for and personally to superintend and supervise the erec- tion of a residence and building to be erected by said two defendants in accordance with and pursuant to said plans and specifications upon the said above described premises, and that in and by said agreement and con- tract it was mutually covenanted and agreed between plaintiff and said defendants, B . . . . and C . . . . , that in consideration of the premises and of the plaintiff's agree- ing to undertake and perform and undertaking and per- forming said work and preparing and furnishing said plans and sketches and drawings and supervising and superintending the erection of said residence and build- ing, said defendants, B . . . . and C . . . . , would pay and they agreed to pay to plaintiff for his said services, and would, and did agree to, reimburse him for the disburse- ments and expenses incurred by him and his employees and representatives, the sums and in the manner and upon the terms and in the amounts more specifically set forth and appearing in said contract hereto annexed and made a part of this complaint and marked Exhibit A, as aforesaid ; that in and by said contract and agree- FORMS 287 ment it was further and specially mutually covenanted and agreed between plaintiff and said defendants, B and C . . . . , that plaintiff should receive from and be paid by the said defendants, B . . . . and C , and said two defendants did duly promise and covenant and agree to pay plaintiff, for his said services and plans and speci- fications and drawings, in the manner and upon the terms and conditions as to time of payment set forth in said contract, that is to say, one-fifth (%) of plaintiff's total commissions upon the completion of the sketches for said residence, two-fifths (%) thereof upon the com- pletion of the working drawings and specifications, and the balance thereof from time to time as the work should progress, and in any event, and not later than forthwith upon the completion of said building, an amount equal to six (6%) per centum of the amount of the contract price and authorized extras for the erection of said residence and building on said premises above described, together with all reasonable and proper reimbursement for, and the reasonable value of, all extra work done on the said drawings and plans and specifications, to- gether with the amount of plaintiff's traveling expenses and the traveling expenses of his representatives and employees. FOURTH: That plaintiff did and has duly performed for said defendants, B. . . . and C. . . ., all the work and duly furnished all the materials provided for in said contract, and that said work was performed and said materials were furnished for and actually used in the improvement of the said real property and premises hereinbefore described and the erection of said residence and building thereon and that said property and building have been enhanced in value thereby; that plaintiff has duly fulfilled and performed all of the conditions, cov- enants and agreements of said contract and agreement on his part to be performed and in the manner and within the time therein provided and specified, and that 288 LAW OF ARCHITECTURE AND BUILDING the last item of work was performed and said residence and building and work completed on the ...... day of May, 1911; that said contract price and authorized extras for the erection of said residence and building amounted to the sum of $ ; that six (6%) per centum thereof amounts to the sum of $ ; that extra work was necessarily performed by plaintiff on .said drawings and specifications and plans and in super- intending the construction of said building and at the spe- cial instance and request of said defendants, B . . . . and C . . . . , of the reasonable value and which was and is reasonably worth the sum of $ ; that said neces- sary traveling expenses of plaintiff and his employees and representatives amounted to the sum of $ ; making an aggregate total amount of $ which amount became due and owing to plaintiff from said de- fendants, B. . . . and C. . . ., prior to the commencement of this action, pursuant to the provisions of said con- tract and agreement between them ; that no part of said sum has been paid, though payment thereof was hereto- fore and before the commencement of this action duly demanded, except the sum of $ and that heretofore and prior to the commencement of this action, the balance of said sum of $ , to wit, the sum of $ became and now is justly due and owing from said defendants, B . . . . and C . . . . , to the plaintiff under and pursuant to the terms of said contract and agreement. FIFTH: That on the day of May, 1911, and within ninety days after the completion of the said con- tract and work above set forth, and within ninety days after the completion of said residence and building and the last item of work thereon, plaintiff duly filed a notice of lien in writing in the Clerk's office of the County of Westchester, State of New York, in which county the property aforesaid and above described and against which the lien was asserted, is situate, on and against said FORMS 289 real property and the building and improvements thereon and the interests and estates of said defendants, B . . . . and C . . . . , in and to said property and said building and improvements, for the said unpaid balance and amount of the labor and materials and expenses aforesaid, to wit, the said sum of $ ; that said notice of lien contained the name of the owner of said real property, to wit, said B . . . . , against whose interest and the interest of said C. . . ., if any, the lien was and is claimed, and the nature of her interest and the nature of the interest of said C. . . . and the name of the person and persons by whom plain- tiff was employed and to whom he furnished the said labor and materials ; the labor performed and the agreed price thereof ; the amount unpaid ; the time when the first and last items of work were performed and furnished, and also a description of the property to be charged with the lien in all ways sufficient for identification ; that said no- tice of lien was duly verified and, on information and belief, complied in all respects with the requirements of the statute in such case made and provided, and was on the day of May, 1911, duly filed and entered and docketed by said Clerk of said County of Westches- ter in the lien docket kept in his office; that a copy of said notice of lien is hereto annexed and marked Ex- hibit B, and made a part of this complaint. SIXTH : On information and belief, that on the said day of May, 1911, and after the filing of his said notice of lien as hereinbefore set forth, the plaintiff caused a copy of said notice to be and the same was duly served personally upon B . . . . the owner of said premises, and one of the defendants herein, as aforesaid, and also caused a copy of said notice to be and the same was duly served personally upon the defendant C . . . . , the husband of said B . . . . , in manner as is by statute provided. SEVENTH : On information and belief, that there are no other subsequent liens or claims by judgment, mort- gage or conveyance outstanding against said property, except as follows, viz. : A mechanic's lien, filed by the defendant D . . . . , the contractor by whom said residence was erected, against said B . . . . and said prem- ises and the interest and estate of said B . . . . therein for $ , filed 1911, in the office of the Clerk of the County of West- chester, State of New York. EIGHTH : That no other action or proceeding has been brought or commenced or is pending at law or otherwise upon the debt hereinbefore referred to or to enforce any of the rights and obligations hereinbefore set forth, or to recover said debt or any part thereof, and that no part of said debt or of the amount herein claimed has been paid or collected. NINTH : That plaintiff has duly performed and com- plied with each and all of the provisions of said contract and agreement on his part to be performed and com- plied with. WHEREFORE, plaintiff demands judgment: 1. That he be adjudged to have a lien on said prop- erty for the sum of $. . . ... .. 2. That the defendants, B . . . . and C . . . . , and each and both of them, and all persons claiming under them, be foreclosed of all equity of redemption or other inter- est in said premises. 3. That the said premises and the interest in said premises of said B. . . . and C. . . . and each and both of them, be sold as provided by law, and that from the proceeds of said sale the plaintiff be paid the amount of his lien aforesaid and legal interest thereon, together with the expenses of said sale and the costs and disbursements of this action. 4. That plaintiff have personal judgment against the FORMS 291 defendants, B.... and C , in the sum of $ with legal interest, and for any deficiency that may re- main due him after such sale. 5. That the priority of any and all claims by lien judg- ment, mortgage, or conveyance, or otherwise, outstanding against said property, may be determined and plaintiff decreed to have a prior lien on said property, and that plaintiff may have such further judgment, decree or or- der as may be necessary to protect his rights in the prem- ises, and such other and further relief as to the Court may seem just and proper. Attorneys for Plaintiff, Office and post office address, No. 2 Rector Street, Borough of Manhattan, New York City. STATE OF NEW YORK | COUNTY OF NEW YORK,] A. ... being duly sworn, deposes and says: that he is the plaintiff named in the foregoing complaint; that he has read said complaint and knows the contents thereof, and that the same is true of his own knowledge, except as to the matters therein stated to be alleged upon infor- mation and belief, and that as to those matters he believes it to be true. Sworn to before me this day of June, 1911. A (Notary's signature, title, etc.) (Exhibits Annexed.) PRIVATE PROPERTY. 292 LAW OF ARCHITECTURE AND BUILDING LIS PENDENS PRIVATE PROPERTY New York Supreme Court, County of Westchester A...., Plaintiff, LIS PENDENS. against B , C.... and D...., Defendants. SIR: NOTICE is hereby given that an action has been com- menced and is now pending in the above named Court by the above named plaintiff against the above named defendants, the object of which action is to foreclose a mechanic's lien, notice of which lien was on the day of May, 1911, duly filed in the office of the Clerk of the County of Westchester, State of New York; and NOTICE is further given hereby that the real prop- erty affected by said lien is more particularly bounded and described as follows, to wit: (Take in detailed description by metes and bounds and lot, Block and street numbers.) Dated, New York City, August , 1911. Attorneys for Plaintiff, Office and post office address, No. 2 Rector Street, Borough of Manhattan, New York City. To the County Clerk of the County of Westchester, State of New York. SIR: You are hereby directed and requested to index the foregoing notice in and against the names of the follow- FORMS 293 ing defendants in the above entitled action, that is to say, against the names of the defendants, B . . . . and C Attorneys for Plaintiff, Office and post office address, 2 Rector Street, Borough of Manhattan, New York City. NOTICE TO OWNER OF CLAIM (Under New Jersey Practice) To RICHARD ROE: You ARE HEREBY NOTIFIED by the undersigned, that A. B., the contractor with whom you have contracted for the erection of the building and dwelling hereinafter referred to, is justly indebted to me, the undersigned, in the sum of Dollars, for work done and labor performed by me at his request, in erecting and con- structing, and for materials furnished by me at his re- quest and used in the erection and construction of, the certain three-story stone and frame residence and dwell- ing house owned by you, situate, lying and being at the Northeast corner of Street and Avenue, in the City of , County of and State of New Jersey, and situate and erected upon the property .it said location, which is more particularly bounded and described as follows, to wit: (take in description of prop- erty, preferably by metes and bounds), which said resi- dence and dwelling house is mentioned and referred to and described in a certain contract in writing heretofore made and entered into between you and said A. B. and heretofore, and on or about the day of , 1914, filed in the office of the Clerk of said County of State of New Jersey, and YOU ARE HEREBY FURTHER NOTIFIED, that I, the Under- signed have demanded from the said A. B. payment of 294 LAW OF ARCHITECTURE AND BUILDING the said sum of Dollars so due and owing to me as aforesaid and that he, the said A. B. has failed and refused to make payment of the same or any part thereof ; and I DO HEREBY, THEREFORE, NOTIFY AND REQUIRE yOU to retain the amount of money so due to and claimed by me out of the amount owing by, or due from, you to the said A. B. and, upon your being satisfied of the correct- ness of my demand, to pay the said sum of Dollars, thereupon and forthwith, to me. Dated, New Jersey, July ist, 1914. (Signed) JOHN DOE. GENERAL INDEX References Are to Sections ACCEPTANCE of commissions by architect, 4. of plans, as affecting architect's compensation, 26, 27. and delivery distinguished, 27. ACTION for neglect against architect burden of proof, 44. by contractor, when premature, 69. ADMISSION of architects to practice, 3. AGENCY of architect (see also Architect, Emergency, Extras, Super- intendence), 7-19, 46, 65-66. AGREEMENT between architect and builder, where improper, 4. ALTERATION of contract terms, by architect, 9-11. by owner as affecting architect's agency, 13. AMERICAN Institute of Architects, schedule of, as proof of value of services, 37. Institute of Architects Standard Documents of (see also Appendix B), 72. APPROVAL of architect, as affecting lien of subcontractor, 95. of architect, lien action as affected by unreasonable withhold- ing of, 95. of City Department as condition precedent to maintenance of mechanic's lien, 96. of architect, unreasonable withholding of, as ground for damages, 114. ARBITRATION provision re certificates as affected by covenant for, 55, provision as affecting provision for liquidated damages, 70. agreements, as usurping jurisdiction of courts, 72. ARBITRATOR architect as, 49, 65, 66. power of architect to delegate to partner authority as, 14, 15. ARCHITECT relation in general between owner and, i. obligations to public of, I, 3, 39. right of, to plead privilege, 2. 295 296 LAW OF ARCHITECTURE AND BUILDING ARCHITECT- continued [References Are to Sections.} disclosure of employer's intentions by, 2. liability for, 2. confidential and trust relations of owner and, i, 3, 14. good faith required of, 3, 114. requirements for admission of, to practice, 3. to have no concealed or conflicting interest in contract, 4. compensation of, as affected by pecuniary interest in con- tract, 4. agreements between builder and, 4. effect of, 4. acceptance of commissions by, 4. loans by builder to, 4. employment by contractor of, 4. effect of, 4. in dual capacity of architect and contractor, 4. assumption of good faith of, 6. agency of, importance of, 7. express and implied agency of, 8. agency of, re extras, 9, 54. as general agent of owner, 9, 10, n, 54. agency of, as limited by contract terms, 9, 10, II, 54. modification or change of contract terms by, 9-11. agency of, as superintendent, 9-19, 46, 65-67. ratification of changes by owner as affecting, 13. limitations on general agency of, n. power of, to employ or substitute new contractor, n. certificate of, to comply with form specified, n. certificate of, as affecting right of builder to recover, 55. unreasonable refusal to issue certificate by, 55, 114. giving of certificates to subcontractors by, n. right of, to certify extras strictly construed, n. not allowed to change materials or construction, n. authority of, to supervise letting of subcontracts, n. authority of, to employ workmen, n. right of, to receive notice of assignment of contract, n. special agency of, 12. general agency of as enlarged by special agency, 12. must exercise special agency with care, 12. strict construction of special agency of, 12. delegation of powers in general by, 14. delegation of authority as arbitrator to partner by, 15. delegation of authority of, by consent, 15. care required in delegation of authority by, 16. power of, to act in emergency, 17. dangers of implied authority of, 18. importance of caution in exercise of agency authority by, 19. precautionary suggestions re agency of, 19. important to understand right of, to compensation, 20. theories of recovery of compensation by, 21. GENERAL INDEX 297 ARCHITECT continued [References Are to Sections.} right of, to recover for plans, in absence of special agree- ment, 22. right of, to compensation for plans, as affected by conditions specified, 22, 23. right of, to compensation, as affected by conditions re cost of building, 24-25. estimate of cost by, 24, 25. compensation of, as dependent upon delivery and acceptance of plans, 26, 27. not provable by custom alone, 28, 29. as dependent on actual contract, 28, 29. in competitions, 30. as dependent on proof of care and skill, 31. as affected by modification of contract, 32. as affected by rescission of contract by owner, 33-36. for preliminary sketches, 33, 38. computation of value of services, 37. as affected by variance between preliminary sketches and working drawings, 38. charge schedule of American Institute of Architects, as proof of value of services of, 37. duties of owner to, 38. general suggestions and rules re compensation of, 38. skill required of, in general, 39. compensation of, as affected by defects in plans, 40. liability of, for defects in plans, 40. for mistakes and negligence re plans, 41-45. for defects in plans, as affected by compliance with plans, 43, 44- for expense of repairs, 45. for improper superintendence, 46. burden of proof in action for damages for defects in plans and specifications, 44. care required of, in superintendence, 46. measure of care and diligence in superintendence required of, 46. negligence of, a question of fact, 47. burden of proof in action to recover damages for negligence of, 48. as arbitrator, 49, 65, 66. duties to owner of, in issuance of certificates, 50. care and diligence required in issuance of certificates by, 50. death of, 5.1. as affecting provision requiring certificate, 66. right to plans as between owner and, 52. right to plans as between builder and, 115. right of builder to compensation, as affected by estimates of, 54- 298 LAW OF ARCHITECTURE AND BUILDING ARCHITECT continued {References Are to Sections.] weight given to testimony and opinion of, 55. as supervisor (see also Architect and Superintendence), 66. lien of, 80. as affected by superintendence, 81-83. New York rule re lien rights of, 82, 84. Massachusetts rule re lien rights of, 83, 84. effect on lien action of unreasonable withholding of certificate by, 95 certificate of, as condition precedent to enforcement of lien, 95- enforcement of lien, as affected by collusion between owner and, 97. rights and liabilities in general of builder and, 114. duties to builder of, 3, 114. summary of points of importance to builder, owner and, 116. ASSIGNMENT mechanic's lien as affected by general, 104. ASSUMPTION of good faith of architect, 6. ATTACHING plans and specifications to contract, 62. AUTHORITY of architect, dangers of implied, 18. as superintendent, 9-19, 46, 65-67. to receive notice of assignment of contract, n. BALANCE of contract price, presumption re, upon completion by owner, 68. BREACH of guarantee as affecting right of contractor to recover, 55. BUILDER (see also Contractor) good faith required of architect toward, 3, 114. loans to architect by, 4. agreements between architect and, 4. right to compensation for extras, of, 54. compensation of, 54. effect of architect's estimates on compensation of, 54. chargeable with notice of contract provisions, 54. recovery of, as dependent upon approval of, and issuance of certificate by, architect, 55. recovery by, upon completion of work by owner, 55. right of, to plans, as against owner, 57. as against architect, 115. mutual liabilities of owner and, 56. completion by owner upon failure of, 68. collusion of architect and owner in withholding certificate no bar to enforcement of lien by, 97. GENERAL INDEX 299 BUILDER continued [References Are to Sections.] suspension of work by mutual consent, as affecting recovery of compensation by, 69. when action by, premature, 69. lien rights of, 89-105. right of, to lien dependent on performance, 91. substantial performance by, as supporting lien, 92. effect of delay upon lien of, 93, 94. lien of, as affected by architect's approval, 95. rights and liabilities of architect and, 114. refusal of architect to issue certificate as basis for action for damages by, 114. summary of points of importance to architect, owner and, 116. BUILDING CONTRACT (see Contract). BURDEN of proof in action for damages for defects in plans and specifi- cations, 44. of proof in action for damages for negligence or want of skill of architect, 48. of proof in lien action, where architect's approval is with- held, 95. CARE required in delegation of authority by architect, 16. proof of, as affecting right of architect to recover, 31. degree of, required of architect in superintendence, 46. CERTAINTY required in contract, 62. CERTIFICATE of architect to subcontractors, n. of architect to comply with form specified, n. duties of architect to owner in issuance of, 50. care required in issuance by architect of, 50. of architect, importance of, 55. unreasonable refusal of architect to issue, 55. proof of waiver of, 55. recovery by builder, where error of law is result of failure of architect to give, 55, effect of final, 55. as evidence of amount due from owner to contractor, 55. as affected by covenant for arbitration, 55. provisions for, enforcible for benefit of contractor, as well as owner, 55. death of architect as affecting provision for, 66. issuance by architect of, as condition precedent to recovery by contractor, 55. as condition precedent to maintenance of lien action, 95. effect of collusion, 97. waiver by owner, 98. as evidence of performance, to support lien, 09. duties of architect to contractor re issuance of, 114. 300 LAW OF ARCHITECTURE AND BUILDING CERTIFICATION [References Are to Sections.] of extras by architect strictly construed, n. CHANGE of contract terms by architect, 9-11. in specifications, contract provision that consent of architect is necessary to, 67. in ownership, as affecting mechanic's lien, 102. CHANGES approved by owner, as affecting architect's agency, 13. CITY Department, approval of as condition precedent to enforce- ment of lien, 96. CLAIMS priority of, in mechanic's lien, 113. COLLUSION between owner and contractor, 38. between architect and owner, in withholding certificate, no bar to enforcement of lien, 97. COMMISSIONS acceptance by architect of, 4. COMPENSATION of architect (see also Architect, Mechanic's Lien, Plans, Pre- liminary Sketches, Recovery), as affected by pecuniary interest in contract, 4. theories of recovery by architect of, 21. important to understand right of architect to, 20. right of architect to, in absence of special agreement, 22. as dependent upon delivery and acceptance of plans, 26, 27. not sustained by proof of custom, alone, 28, 29. for plans submitted in competitions, 30. as dependent on proof of care and skill, 31. as affected by modification of contract, 32. for preliminary sketches, 33, 38. as affected by rescission of contract by owner, 33-36. computation of value of services, 37. schedule of charges of American Institute of Architects, as evidence of value of services, 37. as affected by variance, between preliminary sketches and working drawings, 38. general suggestions and rules re, 38. as affected by defects in plans, 40. of builder (see also Builder, Contractor, Damages, Mechanic's Lien, Recovery). as affected by modification of contract, 54. effect of estimates by architect on, 54. occasioned by omission or act of owner, 54. as dependent upon approval of and issuance of certificate by architect, 55. GENERAL INDEX 301 COMPETITIONS [References Are to Sections.} right to compensation for plans submitted in, 30. COMPLETE right to compel owner to, 35. COMPLETION of contract by owner, 68. presumption re unpaid balance of contract price, upon, 68. COMPLIANCE with plans as affecting right of action against architect for defects, 44. COMPUTATION of value of services of architect, 37. CONCEALED interest of architect in contract, 4. CONDITION precedent, architect's certificate a, to maintenance of lien, 95. precedent, delivery and acceptance of plans as, to architect's right to recover, 26, 27. CONDITIONS of contract waiver of, 15. CONFLICTING interest of architect in contract, 4. CONSENT suspension of work by mutual, 69. of owner, as affecting right to lien, 88, 105. delegation of authority by architect, by, 15. CONSIDERATION necessity of, in contract, 62. CONSPIRACY between owner and contractor, 38. between architect and owner, 97. CONSTITUTIONALITY of mechanic's lien legislation, 76. CONSTRUCTION of contract provisions re extras, n. CONSTRUCTION CONTRACT (see Contract) CONTRACT modification or change of, by architect, 9-11. provisions for extras, in, 9-10, 67. validity of provisions re extras, in, 67. waiver by parties of conditions of, 15. modification of, as affecting compensation of architect, 32. rescission of by owner as affecting compensation of architect, 33,34- right to compel owner to complete, 35. measure of damages on refusal of owner to complete, 36. extension, by implication, of term of, 54, effect of fraud on, 56. general requisites of construction, 62. necessity of consideration for, 62. 302 LAW OF ARCHITECTURE AND BUILDING CONTRACT continued [References Are to Sections.) necessity of certainty in, 62. necessity of written, 62. for illegal purpose, 62. embodied in various instruments, 62. incorporation, by reference, of plans and specifications in, 62. necessity of attaching plans and specifications to, 62. various statutory provisions re, 63. distinction between void and illegal, 64. validity of provision requiring consent of architect to change in, 67. requirement of owner's consent for sub-letting of, 67. waiver by owner of terms of, 67. provisions re liquidated damages, 70. not to usurp jurisdiction of courts, 71, 72. mechanic's lien as dependent upon, 79. lien by, 86. provisions, as affecting lien rights of subcontractor, no. effect upon lien rights of filing or recording of, 112. CONTRACTOR (see also Builder) good faith required of architect toward, 3, 114. loans to architect by, 4. as superintendent of his own work, 4. architect acting as, 4. employment of architect by, 4. employment or substitution by architect of new, n. compensation of, 54. effect of architect's estimates on compensation of, 54. chargeable with notice of contract provisions, 54. recovery for extras by, 54, 67. recovery by, where architect's refusal to issue certificate is unreasonable, 55. certificate, as evidence of amount due from owner to, 55. breach of guarantee, as affecting recovery by, 55. certificate provisions enforcible for benefit of, 55. right of owner to recover damages from, 56. obligations of owner to, 56. obligations to owner of, 56. right of, to plans, as against owner, 57. as against architect, 115. liability of, for work of subcontractor, 58. recoupment from subcontractor by, 59. necessity of substantial performance by, 61. importance of provisions re extras, to, 67. completion by owner upon failure of, 68. suspension of work by mutual consent, as affecting recovery of compensation by, 69. when action by, premature, 69. lien rights of, 89-105. GENERAL INDEX 303 CONTRACTOR Continued [References Are to Sections.) right of to lien dependent upon performance, 91. substantial performance by, as supporting lien, 92. effect of delay upon lien of, 93, 94. lien of, as affected by architect's approval, 95. collusion between architect and owner in withholding certifi- cate no bar to enforcement of lien by, 97. lien of subcontractor as affected by failure of, to complete, 109. necessity, and effect upon lien rights, of filing or recording contract between owner and, 112. rights and liabilities of architect and, 114. refusal of architect to issue certificate as basis for action for damages by, 114. summary of points of importance to architect, owner and, 116. CORPORATIONS as lienors, 100. COST of building, as affecting architect's right to compensation, 24, 25- estimation by architect of, 24, 25. COURTS tendency of, in enforcement of provision re extras, 67. CUSTOM as affecting right of architect to compensation, 28, 29. DAMAGES (See also Architect, Contractor, Owner) measure of, on refusal of owner to complete, 36. liquidated, 70. arbitration provision as affecting provision for liquidated, 70. right of builder to, for refusal of architect to issue certificate, 114. for defects in plans, 40. for improper workmanship, 56. burden of proof in negligence action against architect for, 48. DANGERS of implied authority of architect, 18. DEATH of architect, 51. as affecting provision requiring certificate, 66. of owner as affecting mechanic's lien, 103. DEFECTS in plans, liability of architect for, 40. DEGREE of care and diligence required of architect as superintendent, 46. DELAY effect of, upon lien of contractor, 93, 94. DELEGATA POTESTAS NON POTEST DELEGARE, 14, 15. DELEGATION of authority by architect, 14, 15. by consent, 15. due care required in, 16. [References Are to Sections.] DELAGATUS NON POTEST DELEGARE, 14, 15. DELIVERY and acceptance of plans as affecting architect's right to com- pensation, 26, 27. and acceptance distinguished, 27. DILIGENCE degree of, required of architect in superintendence, 46. DISCLOSURE of employer's intentions by architect, 2. DISTINCTION between void and illegal contracts, 64. DOCUMENTS the "Standard Documents" of the American Institute of Ar- chitects (see also Appendix B), 72. DRAWINGS (see also Compensation, Preliminary sketches). contract provisions requiring consent of architect, to justify departure from specifications or, 67. EMERGENCY powers of architect in, 17. EMPLOYEES of subcontractor, lien rights of, in. EMPLOYMENT of workmen by architect, n. ERROR of law, recovery by builder where failure to give certificate is due to, 55. ESTIMATES of architect, as affecting right of builder to compensation, 54. ESTIMATION of building cost by architect as affecting liability of owner, 24, 25. ESTOPPAL of owner from claiming architect's acts improper, 5. of owner from claiming exceeding of agency powers by archi- tect, 13. EVIDENCE certificate as evidence of performance in general, 55. certificate as evidence of performance to support lien, 99. schedule of charges of American Institute of Architects, as, 37- EXCEEDING of agency powers by architect (see also Architect), when owner estopped from claiming, 13. EXPRESS agency of architect, 8. EXTENSION of contract term by implication, 54. EXTRAS (see also Architect, Builder, Contractor, Owner) rights and liabilities of architect re, 9, 54. right of architect to certificate for, strictly construed, 1 1. GENERAL INDEX 305 EXTRAS continued [References Are to Sections.} right of builder to recover for, 54. occasioned by omission or act of owner, 54. importance to owner and contractor of contract provisions re, 67. tendency of courts in enforcement of provisions for, 67. order for, by implication, 67. validity of provisions in contract for, 67. FAILURE of builder completion by owner upon, 68. FILING of contract and specifications as affecting lien rights, 112. FINAL certificate effect of, 55. FIRE right to lien, as affected by, 101. FIXTURES right to mechanic's lien for lighting, 87. FORM specified certificate of architect to comply with, II. FORMS (See Special Index to Forms, page 314). FRAUD effect of, on contract, 56. GENERAL assignment, as affecting mechanic's lien, 104. GOOD FAITH required of architect, toward owner, 3. toward builder, 3, 114. of architect assumed, 6. GUARANTEE right of contractor to recovery, as affected by breach of, 55. HISTORY of mechanic's lien legislation, 74, 75. ILLEGAL contract for purpose which is, 62. contract as distinguished from void contract, 64. IMPLICATION extension of term of contract by, 54. IMPLIED agency of architect, 8. authority of architect, 18. dangers of, 18. IMPROPER agreement between architect and builder, 4. superintendence, liability of architect for, 46. INSTITUTE of Architects, American, charge schedule of as proof of value of services, 37. 306 LAW OF ARCHITECTURE AND BUILDING INTEREST [References Are to Sections.] conflicting, of architect in contract, 4. ISSUANCE of certificate, duties of architect, to owner in, 50. to builder in, 114. JURISDICTION of courts, contract not to usurp, 71, 72. arbitration agreements, as usurping, 72. LIABILITIES of architect, owner and contractor (see Architect, Builder, Contractor, Compensation, Lien, Owner, Plans). LIEN (see Mechanic's Lien) LIGHTING fixtures, right to mechanic's lien for, 87. LIMITATION of agency of architect, 10-19. LIQUIDATED damages, 70. legality of provision for, as distinguished from penalty, 70. arbitration provision as affecting provision for, 70. LOANS by builder to architect, 4. MAINTENANCE of lien, approval by City Department as condition precedent to, 96. MASSACHUSETTS right of architect to lien in, 83, 84. MATERIAL-MEN of subcontractor, lien rights of, III. MEASURE of damages on refusal of owner to complete, 36. of care and diligence required of architect in superintendence, 46. MECHANIC'S LIEN as dependent on state statutes, 73, 85. definition of, 73. history of, 74, 75. constitutionality of, 76. as statutory remedy, 77. imposes no personal liability, 78. necessity of contract to enforcement of, 79. of architect, in general, 80, 81. importance of superintendence in establishment of architect's right to, 81-83. of architect under New York doctrine, 82, 84. GENERAL INDEX 307 MECHANICS LIEN continued [References Are to Sections.) of architect under Massachusetts doctrine, 83, 84. importance of statutory provisions in consideration of, 85. by contract, 86. for lighting fixtures, 87. consent of owner, as affecting right to, 88. rights of contractor in general, 89-90. as dependent on performance, 91. the doctrine of substantial performance, 92. as affected by delay, 93, 94. as dependent on architect's approval, 95. certificate of architect as condition precedent to enforcement of, 95- approval of City Department as condition precedent to en- forcement of, 96. enforcible where certificate of architect withheld through col- lusion with owner, 97. waiver of production of certificate by owner as affecting, 98. certificate as evidence of performance to support, 99. right of corporations to enforce, 100. effect of destruction of building by fire on, 101. as affected by change in ownership, 102. effect of death of owner upon, 103. as affected by general assignment, 104. consent of owner as affecting right to, 105. of subcontractor, nature of, 106. Pennsylvania doctrine re, 107. New York doctrine re, 108. subrogation, 108. failure of contractor to complete as affecting right of sub- contractor to, 109. contract provisions as affecting rights of subcontractor to, no. rights of employees and material-men of subcontractor to, in. effect of filing or recording contract and specifications upon, 112. necessity of filing specifications with contract, 112. "Stop Notice" under New Jersey practice, 112. priority of claims in, 113. MISTAKES in plans, 41-45. MODIFICATION of contract by architect, 9-1 1. of contract, as affecting compensation of architect, 32. MUTUAL consent suspension of work by, 69. 3 o8 LAW OF ARCHITECTURE AND BUILDING NEGLIGENCE [References Are to Sections.* of architect a question of fact, 47. or lack of skill of architect burden of proof in action for, 48. NEW contractor, employment by architect of, II. NEW YORK right of architect to lien in, 82, 84. doctrine re lien of subcontractor, 108. NOTICE of assignment of contract architect without authority to re- ceive, ii. builder chargeable with notice of contract provisions, 54. Stop, under New Jersey practice, 112. OBLIGATIONS of architect, owner, and contractor (see Architect, Builder,. Contract, Contractor, Damages, Mechanic's Lien,. Owner, Plans, Preliminary Sketches). OMISSION by owner, as affecting builder's right to compensation for extras, 54. OPINION of architect weight of, 55. OWNER relation in general between architect and, I. estoppel of, from claiming architect's acts are improper, 5. liability of, where new contractor employed by architect, II. not bound by receipt of notice of assignment of contract by- architect, ii. estoppel of, from claiming exceeding of agency powers by architect, 13. alterations or changes approved by, as affecting architect's, agency, 13. relations of architect to, based on trust and confidence, 1-3, 14. liability to architect of, for plans, in absence of special agree- ment, 22. as affected by conditions specified, 22, 23. as affected by conditions re cost of building, 24, 25. estimate of cost by architect as affecting liability of, 24, 25. rescission of contract by, 33-36. can not be compelled to complete, 35. rights of, against architect for neglect and mistake, 40-43. burden of proof in action by, against architect for neglect, 44.. right of, to damages for repairs, 45. right of, to damages for improper workmanship, 56. right of, to plans, as against architect, 52. right of, to plans, as against builder, 57. extras occasioned by omission or act of, 54. architect's certificate, as affecting right of builder to recover against, 55. waiver of issuance of architect's certificate by, 55. GENERAL INDEX 309 OWNER continued [References Are to Sections.] liability of, where refusal to issue architect's certificate is un- reasonable, 55. recovery by builder on completion of work by, 55. certificate as evidence of amount due to contractor from, 55. certificate provisions enforcible for contractor as well as, 55. liability of contractor for damages, to, 56. obligations to contractor of, 56. obligations of contractor to, 56. importance of provisions re extras to, 67. waiver of contract terms by, 67. completion of contract by, 68. construction by courts of provision for completion by, 68. presumption re unpaid balance of contract price on comple- tion by, 68. consent of, as affecting mechanic's lien, 88, 105. production of certificate in lien action may be waived by, 98. mechanic's lien, as affected by death of, 103. effect on lien rights of filing or recording contract between contractor and, 112. necessity of filing specifications with contract to prevent lien claim against, 112. summary of points of importance to architect, builder and, 116. OWNERSHIP change of, as affecting lien, 102. PARTNER delegation of authority by architect to, 14, 15. PAYMENT time of, where no fixed time specified, 60. right of architect to (see Architect, Compensation, Plans, Preliminary Sketches). right of contractor to (see Contractor, Builder, Compensa- tion). PECUNIARY interest of architect in contract, effect of, 4. PENALTY as distinguished from liquidated damages, 70. PENNSYLVANIA doctrine re lien of subcontractor, 107. PERFORMANCE as affecting right of contractor to lien, 91. doctrine of substantial, 92. PLANS right of architect to recover for, 20-25. theories of recovery by architect for, 21. right of architect to compensation for, as affected by condi- tions re cost, 24, 25. right of architect to compensation for, as dependent upon de- livery and acceptance, 26, 27. 310 LAW OF ARCHITECTURE AND BUILDING PLANS continued [References Are to Sections.] delivery and acceptance of, distinguished, 27. defects in, as affecting compensation of architect, 40. liability of architect for, 40. mistakes and negligence re, 41-45. compliance with, as condition precedent to recovery of dam- ages from architect for defects, 43, 44. right of owner to, as against architect, 52. as against builder, 57. right of builder to, as against owner, 57. as against architect, 115. right of architect to, as against owner, 52. as against builder, 115. incorporation of plans and specifications in contract, by refer- ence, 62. where must be attached to contract, 62. PRECAUTIONARY SUGGESTIONS re agency of architect, 19. re compensation of architect, 38. in general, 116. PRECEDENT certificate of architect, as condition precedent to maintenance of lien, 95. PRELIMINARY SKETCHES right to compensation for, 33, 38. variance between working drawings and, 38. PREMATURE action by contractor, 69. PRESUMPTION re unpaid balance of contract price on completion by owner, 68. PRIORITY of lien claims, 113. PRIVILEGE right of architect to plead, 2. PRODUCTION of certificate, necessity of, 55. in lien action, 95. waiver of, 98. PROOF of skill and due care as affecting right of architect to recover, 3i- PUBLIC duties of architect to, 3. QUESTION of fact negligence of architect a, 47. GENERAL INDEX 311 RECORDING [References Are to Sections.] of contract as affecting lien rights, 112. RECOUPEMENT by contractor from subcontractor, 59. RECOVERY of compensation by architect, theory of, 21. in absence of special agreement, 22. as affected by special conditions, 22-25. as affected by proof of exercise of due care, 31. by builder, where failure to give certificate due to error of law, 55- by architect, in general (see Architect, Compensation, Me- chanic's Lien, Plans, Preliminary Sketches). by contractor, and subcontractor in general (see Contractor, Subcontractor, Builder, Compensation, Damages, Mechanic's Lien). by owner, in general (see Owner, Damages). REFERENCE incorporation of plans and specifications in contract by, 62. REFUSAL by owner to complete, measure of damages on, 36. of architect to issue certificate, as bar to recovery by contractor, 55. as affecting lien of contractor, 95. as justifying action for damages by contractor, 114. RELATIONS of architect and owner (see Architect, Owner). REPAIRS liability of architect for expense of, 45. REQUIREMENTS for admission of architects to practice, 3. REQUISITES general, of construction contract, 62. RESCISSION of contract by owner, 33-36. RIGHTS of architect, owner and contractor (see Architect, Owner, Builder, Contractor, Compensation, Damages, Mechanic's Lien, Plans). SERVICES of architect computation of value of, 37. SKETCHES right to compensation for preliminary, 33, 38. variance between working drawings and preliminary, 38. SKILL proof of, as affecting right of architect to recover, 31. 312 LAW OF ARCHITECTURE AND BUILDING SPECIAL AGENCY [Reference* Are to Sections.} of architect, 12. to be carefully exercised, 12. strictly construed, 12. SPECIFICATIONS incorporation of, in contract by reference, 62. must be attached to contract, when, 62. contract provision that consent of architect necessary to au- thorize departure from, 67. necessity of filing, with contract to protect owner from lien, 112. STANDARD DOCUMENTS of the American Institute of Architects (see also Appendix B), 72. STATE statutes re contract, 63. statutes re liens, importance of, 85. STATUTORY provisions re contract, 63. provisions, importance of, in consideration of lien rights, 85. "Stop Notice" under New Jersey practice, 112. STRICT construction of right to architect's certificate, n. construction of agency of architect, 9-12, 54. SUBCONTRACTOR certificates of architect to, n. liability of contractor for work of, 58. recoupement by contractor from, 59. nature of lien of, 106. Pennsylvania doctrine re lien of, 107. the theory of direct lien, 107. New York doctrine re lien of, 108. the theory of subrogation, 108. failure of contractor to complete as affecting lien rights of, 109. contract provisions as affecting lien rights of, no. rights of employees and material-men of, in. recording contract as affecting lien rights of, 112. filing or recording specifications and contract as affecting lien rights of, 112. remedy of, by "Stop Notice," 112. SUB-LETTING of contract, as dependent upon owner's consent, 67. SUBROGATION lien of subcontractor by, 108. SUBSTANTIAL performance, necessity of proof by contractor of, 61. performance, what constitutes, 61. GENERAL INDEX 313 SUBSTITUTION [References Are to Sections.) of new contractor by architect, n SUGGESTIONS re compensation of architect, 39. re agency of architect, 19. in general, for architect, owner and builder, 116. SUMMARY of special matters affecting architect, owner and contractor, 116. SUPERINTENDENCE (see also Architect, Mechanic's Lien) by contractor of his own work, 4. by architect, in general, 9, 19, 46, 65-66. care and diligence required of architect in, 46. liability of architect for improper, 46. importance of, in enforcement of mechanic's lien, 81-83. SUPERINTENDENT agency of architect as, 9-19, 46, 65-67. SUPERVISION by architect of letting of subcontract, n. SUPERVISOR architect as (see also Architect, Superintendence), 66. SUSPENSION of work by mutual consent, 69. TENDENCY of courts in enforcing provisions for extras, 67. TESTIMONY of architect weight of, 55. TIME extension of term of contract by implication, 54. of payment where no fixed time specified, 60. UNPAID balance of contract price, presumption re, on completion by owner, 68. UNREASONABLE withholding of certificate by architect, 55. withholding of architect's approval in lien action, 95. USURPATION of jurisdiction of courts by contract, 71, 72. VALIDITY of contract provisions, re extras, 67. re liquidated damages, 70. VALUE of architect's services, computation of, 37. schedule of American Institute of Architects as proof of, 37- 314 LAW OF ARCHITECTURE AND BUILDING VARIANCE [References Are to Sections.] between preliminary sketches and working drawings, 38. effect of, 38. VARIATION of contract terms by architect, 9-11. VOID contract as distinguished from illegal contract, 64. WAIVER of contract conditions, 15, 67. by owner of issuance of architect's certificate, 55. of certificate proof of, 55. by owner of production of certificate in lien action, 98. WITHHOLDING of architect's approval in general, effect of, 55. in lien action, 95. WORK suspension of, by mutual consent, 69. WORKMEN supervision by architect of employment of, II. WRITTEN contract, necessity of, 62. INDEX TO FORMS [References Are to Pages.} Complaints in lien actions, 277, 285. Lis pendens private property, 292. Notice to owner of claim against contractor, 293. Notices of lien in lien actions, 273, 282. Standard form of, acceptance of subcontractor's proposal, 252. agreement between contractor and owner, 222. bond, 245. certificate of authority to execute contract or bond, 251. contractor's proposal, with alternative clauses, 254. general conditions of the contract, 224. instructions to bidders, 253. invitation to submit proposal 252. subcontract, 247. UC SOUTHERN REGIONAL LIBRARY FACILITY A 000689112 1 UNIVERSITY OF CALIFORNIA LIBRARY Los Angeles This book is DUE on the last date stamped below. SEP 1 1974 FEB 4 1980 , ^Vr*TM K ^ Form L9-Series 4939