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 
 
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 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<J 
 
 "The inference from these principles is inevitable, that, 
 unless some contract is shown, evidence of usage or cus- 
 tom is immaterial. 
 
 "The offer of the plaintiff to prove certain facts having 
 been rejected, he must be presumed to be able to prove 
 what he offered to prove. We must, therefore, assume 
 
 15 Citing, Hutchinson v. Bing. 465, 474 ; Clarke v. Roy- 
 Tatham, Law Rep. 8 C. P. stone, 13 M. & W. 752; Yeats 
 482; Field v. Lelean, 30 L. J. v. Pirn, Holt N. P. 95; True- 
 Ex. 168; Baywater v. Richard- man v. Loder, n A. and E. 
 son, i Ad. & E. 508; Robinson 589; Bliven v. New England 
 v. U. S., 13 Wall 363. Screw Co., 23 How. 420. 
 
 16 Citing, Holding v. Pigott, 7
 
 THE COMPENSATION OF THE ARCHITECT 51 
 
 that the custom which he offered to prove did, in fact, 
 exist. But what was that custom? Clearly, that if the 
 building was erected according to the successful plans, the 
 architect was entitled to pay therefor. That was such an 
 acceptance and adoption of his plans as would give him 
 the right to compensation therefor, and the right to super- 
 intend the erection of the building and receive the usual 
 remuneration. The custom certainly did not bind the 
 party who offered prizes for plans, after having paid the 
 prizes, to pay also for plans that he never used, and for 
 superintendence of a building that he never erected, 
 merely because he had selected a particular plan and an- 
 nounced his purpose to build in accordance with it. If 
 such were the custom and usage of architects in Chicago, 
 it was an absurd and unreasonable custom, and therefore 
 not binding . . ." 
 
 "If the plaintiff had offered to show that after the 
 passage of the resolution by which his plan was accepted, 
 the defendants had erected their building according to his 
 plans, then the evidence of the custom would have been 
 pertinent. But he made no such offer, and it is to be pre- 
 sumed no such fact existed. The evidence of this custom 
 was, therefore, properly excluded." 
 
 It is quite natural that variations of the ordi- 
 nary problems in regard to compensation should 
 arise in the practice of every architect, dependent 
 on the special circumstances of each case. It is 
 impossible to anticipate the exact state of facts 
 which may in a special case be presented, but, 
 whatever the situation may be, it will, in the vast 
 majority of cases, be found to be governed by one 
 or another of the broad general rules determining 
 the right of the architect to payment for his serv- 
 ices and prescribing the circumstances under 
 
 17 Citing, United States v. Buchanan, 8 How. 83.
 
 52 LAW OF ARCHITECTURE AND BUILDING 
 
 which that payment can properly be demanded. 
 In every case the broad underlying principles will 
 be found to be that, where a definite agreement 
 has been made, a recovery can be had in accord- 
 ance with it if the architect has performed his 
 part of the agreement, and if no definite agree- 
 ment has been made, a recovery can be had for the 
 reasonable value of the plans providing the archi- 
 tect is not in default and that nothing has been 
 said or done by the owner, or by the architect, 
 which introduces into the situation a new or addi- 
 tional element, such as the submission or ac- 
 ceptance of the plans on approval, or on the un- 
 derstanding that the work covered by them shall 
 not cost more than a certain sum specified. 
 
 30. Competitions. It has been already noted 
 that where plans are submitted in competition on 
 the understanding that payment is to be made 
 only to the successful competitors, those who are 
 unsuccessful can have no cause of action for their 
 services; and also, that where they are submit- 
 ted in competition, as in the Tilly case Supra, 
 wherein the plans for the city hall and county 
 courthouse at Chicago were concerned, on the 
 understanding merely that a prize is to be 
 awarded to the successful architect, but no further 
 contract appears between the parties, the extent 
 of the architect's claim is the prize specified. 
 This situation, however, will be varied if other 
 conditions are introduced into the contest. If, 
 for instance, the plans are submitted in competi- 
 tion on the understanding that those meeting with
 
 THE COMPENSATION OF THE ARCHITECT 53 
 
 the approval of the committee are to be selected 
 as the plans for the building and that the architect 
 submitting the successful plans shall be appointed 
 the architect and the superintendent of its con- 
 struction, the architect whose plans are, under 
 such conditions, accepted in the competition, has 
 a definite right to be employed as the architect of 
 the building and as superintendent of its con- 
 struction, and has a right of action for a refusal 
 to so employ him. 18 
 
 31. Proper Care and Skill Required. An- 
 other question which may be of vital importance 
 in determining the right of the architect to re- 
 cover is the question whether, in his services ren- 
 dered, he has exercised that proper care, skill and 
 ability which, from his membership in his pro- 
 fession and his technical training, he is presumed 
 to possess. If he allow the building to be erected 
 in a manner which he knows or, from his train- 
 ing, should know to be improper, he cannot re- 
 cover. 
 
 This rule would seem to apply where an archi- 
 tect, after a personal examination of the site sug- 
 gested, has allowed a building to be erected thereon, 
 when his training should have warned him that 
 the site, on account of the poor composition of the 
 soil or for other reasons, could not properly sup- 
 port the building or would be entirely unsuitable 
 for the purposes proposed. 183 The situation would 
 be altered if the architect, after an examination 
 
 18 Walsh v. St Louis Expo- 18a Moneypenny v. Hartland, 
 sition, etc., Assn. 90 Mo. 459, i C. & P. (Carrington & Payne) 
 affirming 16 Mo. App. 502. 352, 2 C. & P. 378.
 
 54 LAW OF ARCHITECTURE AND BUILDING 
 
 of the site, warned the owner that, in his opinion, 
 it was not suitable and the owner, with full knowl- 
 edge of the facts thus brought to his attention, 
 directed him nevertheless to proceed. Under 
 these conditions the owner would be assuming the 
 risk personally, and the facts would present a 
 very different case from that which is presented 
 where the architect, knowing the defect, keeps 
 silent and allows the building to proceed, or is so 
 negligent that he fails to detect the defect at all. 
 32. Modification of Contract. It will some- 
 times happen that a contract specific in its terms 
 as respects compensation will be modified by a 
 new contract, in which no specific rate of compen- 
 sation is agreed upon, and the new contract may, 
 under such circumstances, take the place of the 
 old. So, where a contract, definite in its terms as 
 respects compensation, was entered into and was 
 subsequently changed so as to make provision for 
 plans of a more extensive character than those 
 originally contemplated, but did not specify in its 
 modified form any rate or amount of compensa- 
 tion, the architect was allowed to prove, on the 
 theory of quantum meruit, the reasonable value 
 of the plans prepared and of the additional serv- 
 ices rendered by him. 19 In this connection it 
 must, however, be borne in mind that the law does 
 not allow a written agreement to be varied by a 
 parol agreement, and that an instrument, to be 
 effective to modify another, must be executed 
 
 19 Marcotte v. Beaupre, 15 Minn. 152.
 
 THE COMPENSATION OF THE ARCHITECT 55 
 
 with the same formality as the instrument which 
 it attempts to modify. 
 
 If the owner direct that changes be made in the 
 plans or in the building, after the contract for the 
 work has been awarded, or during the progress 
 of the work, and the architect performs additional 
 services in revising the plans or in superintending 
 the extra work, made necessary by the changes 
 directed by the owner, he may recover for the 
 value of his services in changing the plans, 20 and 
 in superintending the work done ; 21 and it is not 
 necessary, it seems, that he shall have given to the 
 owner any notice that he expected additional com- 
 pensation for such extra work. 22 
 
 33. Rescission of Contract by Owner Pre- 
 liminary Sketches. Another situation of special 
 interest to the architect as affecting his right to 
 compensation, and one which arises with com- 
 parative frequency, is that which is presented 
 when the owner, after the services agreed upon 
 have been in part performed, rescinds the con- 
 tract, or expresses his determination to proceed 
 no further with the work. If his determination 
 not to proceed with the building is based upon the 
 fact that it has been agreed that the building 
 shall not cost more than a certain sum, and that 
 the estimates show that the limit will be exceeded, 
 the architect, as has been seen, will, if this be 
 
 20 Johnson v. O'Neill et al., "Smith v. Bruyere, 152 S. 
 
 148 N. W. (Mich. 1914) 364, W. (Tex. 1913), 813. 
 
 and see Baker v. Publishing Co. 22 Smith v. Bruyere, 152 S. 
 
 (Missouri 1903), 77 S. W. 585. W. 813, supra.
 
 56 LAW OF ARCHITECTURE AND BUILDING 
 
 true, have no remedy. But where some such 
 element is not introduced, the architect will have 
 the right to recover for the services which 
 he has rendered, together with damages in an 
 amount sufficient to justly compensate him for 
 such injury as he has sustained by reason of the 
 breach of contract on the part of the owner. 
 Where, therefore, a client requests an architect 
 to proceed and prepare sketches and the architect 
 does so and delivers the sketches, and the client 
 then notifies him that he has changed his mind 
 and does not care to proceed, the client cannot, by 
 such notification, escape his liability to make pay- 
 ment for the sketches prepared, as the notice 
 serves only to prevent the preparation of addi- 
 tional plans. 
 
 34. Illustration of General Rule. This gen- 
 eral rule has been clearly stated by the Appellate 
 Division of the New York Supreme Court, which, 
 reversing a judgment in the court below in favor 
 of the owner, has held specifically that, under cir- 
 cumstances such as those stated, the architect has 
 a definite right to recover for the preliminary 
 sketches prepared. 23 The Court said: 
 
 "The plaintiff did not claim to recover for completed 
 plans and drawings, but only for preliminary sketches, 
 and we are inclined to think that, on the evidence intro- 
 duced, the jury would have been authorized to determine 
 that the preliminary sketches, which were shown to the 
 defendant at the time he claimed to have rescinded the 
 contract, were completed, and that the only effect of his 
 
 23 Pierce v Thurston, 40 A. D. (N. Y.) 577.
 
 THE COMPENSATION OF THE ARCHITECT 57 
 
 countermand, at the time in question, was to prevent the 
 plaintiff from going further and making complete plans 
 and drawings. . . . 
 
 "It is true that the defendant could at any time coun- 
 termand his order for preliminary sketches (Clark v. 
 Marsiglia, i Den. 317 ; Lord v. Thomas, 64 N. Y. 107, 109, 
 no), and that the plaintiff could not recover for work 
 done thereon after such countermand. But the evidence 
 introduced on the trial was such as to authorize a finding 
 by the jury that the plaintiff was employed by the defend- 
 ant to make the preliminary drawings in question, and that 
 he commenced at once and completed them. The defense 
 interposed by the defendant, that he countermanded the 
 order on the Monday following the day that it was given, 
 was an affirmative one. A countermand did not defeat 
 the plaintiff's recovery unless given before the work was 
 completed. It was for the defendant to show an ef- 
 fectual countermand one given before the drawings 
 were finished. This he failed to do. The burden was 
 upon the defendant, asserting as an affirmative defense to 
 the plaintiff's claim a rescission of the contract under 
 which the plaintiff claimed, to show that such rescission 
 was made before the work which was shown by the plain- 
 tiff to have been done by him was finished." 
 
 35. Cannot Compel Client to Complete. In 
 some instances where one who has employed 
 others to perform certain services has notified 
 them of his desire that no further services be 
 performed prior to the completion of the services 
 contracted for, attempts have been made to com- 
 pel him to permit the work to be completed. It 
 has been definitely determined, however, that, 
 while a recovery may be had for the breach of the 
 contract, the employer cannot be compelled to pro- 
 ceed with the completion of work which he has
 
 58 LAW OF ARCHITECTURE AND BUILDING 
 
 decided he does not care to undertake, and that 
 the architect cannot persist in proceeding further 
 under such conditions. 24 Similarly, where a con- 
 tractor has sought to compel the State to proceed 
 with the erection of a public building, which he 
 has been constructing under contract with the 
 State, the specific performance of the contract on 
 the part of the State will not be enforced, and a 
 State statute, although involving a breach of the 
 contract between the State and the contractor, 
 will not, for this reason, be objectionable on the 
 ground of unconstitutionally. 25 
 
 36. Measure of Damages on Refusal to Com- 
 plete. As to the measure of damages in a case 
 where the defendant by requiring the plaintiff to 
 stop work has violated his contract and thus be- 
 came liable for the resultant damages to the 
 plaintiff, such damages "would include a recom- 
 pense for the labor done and materials used and 
 such further sum in damages as might upon legal 
 principles be assessed for the breach of the con- 
 tract, but the plaintiff had no right by obstinately 
 proceeding in the work to make the penalty upon 
 the defendant greater than it would otherwise 
 have been." 26 
 
 37. Basis of Computation of Value of Serv- 
 ices. It remains to say a word in regard to the 
 basis upon which the value of the architect's serv- 
 
 24 Clark v. Marsiglia, i 25 Lord v. Thomas, 64 N. Y. 
 Denio (N. Y.) 317; Lord v. 107. 
 
 Thomas, 64 N. Y. 107. 2e Clark v. Marsiglia, i Denio 
 
 (N. Y.) 317-
 
 THE COMPENSATION OF THE ARCHITECT 59 
 
 ices is to be determined. In the case of a definite 
 contract, the terms thereof will be controlling and 
 the question of what is the reasonable value of 
 the services rendered will not arise; but where 
 the recovery is sought upon the basis of quantum 
 meruit, proof of what constitutes a reasonable 
 valuation of the work done is requisite. Where 
 it is agreed that the percentage representing the 
 compensation of the architect is to be upon the 
 "estimated cost," the provision is interpreted as 
 referring to the reasonable cost of the building 
 "erected in accordance with the plans and specifi- 
 cations, . . . and not necessarily the amount of 
 some actual estimate made by a builder, nor an 
 estimate agreed upon by the parties, nor yet an 
 estimate or bid accepted by the defendant." 2T 
 The architect may not prove a professional cus- 
 tom or usage which will entitle him to be paid 
 a percentage based upon estimates which he 
 has himself prepared. The determining element 
 should be the time spent upon the work or such 
 understanding, express or implied, as existed. 28 
 If it be shown that the owner was fully cognizant 
 of a custom whereby the percentage would be 
 based upon the architect's own estimates, it seems 
 that a modification of this rule might quite pos- 
 sibly be applied, 29 although proof of the custom 
 would not be allowed to vary the terms of a con- 
 tract entirely specific and definite in its provisions. 
 
 27 Lambert v. Sanford, 55 29 Scott v. Maier, 56 Mich. 
 Conn. 437. 554, supra. 
 
 28 Scott v.Maier,.56 Mich. 554.
 
 60 LAW OF ARCHITECTURE AND BUILDING 
 
 By entering into such a contract, with a knowl- 
 edge of the special customs at variance with it, 
 the parties would be assumed to be deliberately 
 basing their agreement on the conditions specified 
 in the contract, and in no way upon the conditions 
 prescribed by custom. 
 
 Under the rule of quantum ineruit, where the 
 contract is silent upon the subject of compensa- 
 tion, the architect, as has been seen, will be en- 
 titled to a reasonable compensation. 30 As to 
 what constitutes reasonable compensation, the 
 decisions will vary in accordance with the circum- 
 stances, and any facts which bear upon the rea- 
 sonableness of the charge will be competent evi- 
 dence. So, a schedule of customary charges, or 
 proof that the owner was aware of the ordinary 
 charges of the architect, or that the architect had 
 shown to him, without objection on his part, a 
 scale of his own rates of charges, or proof of the 
 charges made for similar work by the profession 
 in the locality where the contract is entered into 
 and the work performed, are all competent as ele- 
 ments of proof on the question of what charge is 
 reasonable. In New York it has been definitely 
 determined that the charge schedule of the Ameri- 
 can Institute of Architects may be properly intro- 
 duced as showing the customary legitimate rate 
 of compensation allowable. 31 The New York 
 courts have likewise decided that the client is 
 
 30 Dull v. Bramhall, 49 111. 31 Oilman v. Stevens, 54 
 364; Knight v. Norris, 13 How. Pr. (N. Y.) 197. 
 Minn. 473 ; Mulligan v. Mul- 
 ligan, 18 La, Ann. 20.
 
 THE COMPENSATION OF THE ARCHITECT 61 
 
 chargeable with a knowledge of the standard and 
 regular rates of the architect's fees, where it ap- 
 pears that the client has been charged the same 
 rates by the same architect on several previous 
 
 Q 9 
 
 occasions. 
 
 It may be that the architect, by some act on his 
 part, may so change the situation as to render in- 
 competent proof which might otherwise be com- 
 petent on the point of reasonable compensation. 
 Thus in a case decided by the Supreme Court of 
 the United States, where the plaintiff and his 
 partner, architects, had accepted salaries of 
 $5,000 and $3,000, respectively, the one as archi- 
 tect and the other as chief draftsman, for pre- 
 liminary work done by them, and to which they 
 devoted their entire time, in connection with the 
 Congressional Library, and then subsequently, 
 upon the building of the library, claimed to be 
 entitled to compensation for this later work on 
 the basis of quantum meruit, the Court held that 
 the compensation for such later work should not 
 be determined on the basis of the schedule of 
 charges of the American Institute, for the reason 
 that the architects, in accepting the salaries speci- 
 fied, had themselves furnished a basis upon which 
 the amount of the reasonable value of their serv- 
 ices should be computed, and allowed them $48,- 
 ooo for six years' services. 33 
 
 38. General Suggestions. In dealing with 
 this whole general subject of his compensation, 
 
 32 Gilman v. Stevens, 54 83 Smithmeyer v. U. S., 147 
 How. Pr. N. Y. 197, supra. U. S. 342.
 
 62 LAW OF ARCHITECTURE AND BUILDING 
 
 the architect, if he would properly protect him- 
 self, should exercise the same care to insure that 
 matters be definitely understood and provided 
 for which, it has been seen, it is so desirable that 
 he should exercise in the matter of his powers and 
 liabilities as agent. He should carefully avoid 
 any statements or acts from which may be in- 
 ferred an agreement that the building shall be 
 erected for a definite fixed maximum cost, and 
 should likewise avoid, where practicable, the sub- 
 mission of any estimate of its probable cost of 
 construction. Where such an estimate is neces- 
 sary he will do well to couple with it a direct state- 
 ment to the effect that it is impossible to tell the 
 exact amount which the building will cost, and 
 that it must be understood that his right to his 
 compensation must in no wise be affected by any 
 variation between the estimated amount and the 
 amount of the actual building cost. Especially 
 should he be wary in accepting and undertaking 
 work where the client stipulates, as a condition 
 precedent to payment for services rendered, that 
 the sketches must be satisfactory, for agreement 
 by the architect to such a condition will render 
 him powerless to enforce payment for his serv- 
 ices, in the event that the sketches are not ap- 
 proved unless, perhaps, he can in some way 
 show that the client has not acted or intended to 
 act in good faith in making the condition, and 
 has never intended to accept the sketches under 
 any circumstances. 
 
 Where a client specifies that a certain style of
 
 THE COMPENSATION OF THE ARCHITECT 63 
 
 architecture shall be followed, care should be 
 taken that the style which he has in mind is clearly 
 understood. If, for instance, he states that he 
 wishes the work done in accordance with Gothic 
 style, it may well be that his idea of "Gothic" is 
 entirely different from the true interpretation of 
 that word as used in this connection, and while, 
 under these circumstances, the architect, if he did 
 the work in Gothic style, and thus complied with 
 the terms of his contract, would be able to sustain 
 a recovery, yet his right to do so might easily be 
 endangered if it were shown that, from the con- 
 versation with the client, or other circumstances, 
 he should have known or should have suspected 
 that the meaning of the word Gothic, as inter- 
 preted by the client, was not the same as the ordi- 
 nary meaning and interpretation of that term as 
 used in the architectural profession. 
 
 Again, in the preparation of the plans, many 
 difficult situations and probable losses will be 
 avoided if care be taken to advise the client of the 
 cost of the extra work which changes ordered by 
 him will entail. Where the client makes such 
 changes, thereby increasing the cost of the build- 
 ing, his act in itself would, where it has been 
 agreed that the building shall not cost more than 
 a definite sum, tend to relieve the architect of a 
 part, at least, of the liability imposed by that con- 
 dition, but the latter's position will be infinitely 
 stronger if he be in a position to state that he has 
 warned the owner that the changes contemplated 
 will necessitate an increase in price over the
 
 64 LAW OF ARCHITECTURE AND BUILDING 
 
 amount contemplated, and that the client has 
 made the changes notwithstanding. 
 
 So, too, the client should be warned that there 
 may well be a variance between the working 
 drawings as finally prepared and the preliminary 
 sketches submitted. If there be a substantial 
 variance in this respect, that is, to such an extent 
 that the plans call for a building entirely or radi- 
 cally different from the scheme shown by the 
 sketches, or a building so varied in treatment 
 or in plan that there is a real and substantial 
 difference between the preliminary suggestions 
 upon which the owner acted, and the plans as 
 finally submitted to him, the owner may well 
 claim that, having ordered plans to be prepared 
 for a building to accord with the sketches sub- 
 mitted, he cannot be called upon to make pay- 
 ment for plans which call for a building of a 
 distinctly different type. The mere fact, how- 
 ever, that the plans show some slight modifi- 
 cation in unimportant details of the original 
 scheme as shown by the sketches, will not, espe- 
 cially where the client has been warned, as sug- 
 gested, that some variance will probably be in- 
 evitable, preclude a recovery by the architect for 
 the full amount of his services in the preparation 
 of the plans and drawings. 
 
 The same rules upon which is based the right 
 of the architect to compensation for preliminary 
 sketches and drawings will naturally apply to his 
 right to compensation for the preparation of
 
 THE COMPENSATION OF THE ARCHITECT 65 
 
 specifications and the superintendence of the 
 building; that is to say that where the amount or 
 rate of compensation is definitely specified in the 
 contract, the terms of the latter will be con- 
 trolling, and where the amount or rate is not so 
 specified, the recovery by the architect will be 
 upon the theory of quantum meruit, viz., the rea- 
 sonable value of the work performed. In deter- 
 mining this reasonable value, evidence of custom, 
 of the schedule of charges of the American Insti- 
 tute, or of other similar facts and circumstances 
 will be competent, just as they are competent in 
 the case of proof of the reasonable value of serv- 
 ices performed in the preparation of preliminary 
 sketches or plans. As the architect owes the ut- 
 most good faith to the owner in his dealings with 
 him, so the owner must be entirely honest and 
 above-board in his dealings with the architect, 
 and for any conspiracy between the owner and 
 the builder, the result or purpose of which is to 
 injure the architect, the latter can hold the owner 
 liable in damages. So, if it can be shown that an 
 owner's refusal to comply with the contract, and 
 proceed with the building, is pursuant to or the 
 result of an improper agreement between the 
 owner and the builder, having for its object the 
 prevention of a recovery by the architect of the 
 amount which he would be entitled to recover if 
 the contract were completed, proof of such facts 
 will be competent as tending to show malice or 
 improper conduct on the part of the owner, thus
 
 66 LAW OF ARCHITECTURE AND BUILDING 
 
 increasing proportionately the damages recover- 
 able from him by the architect for the breach of 
 contract in question. 
 
 In a word, the more definitely all conditions 
 touching the right of the architect to compensa- 
 tion are determined upon and made clear in ad- 
 vance the more care that is exercised by the ar- 
 chitect in determining what is the owner's under- 
 standing on all points, and that his understanding 
 of the character and expense of contemplated 
 changes or extra work done is clear the more 
 surely will misunderstandings and controversies 
 and losses, on the part of each, be avoided, and the 
 less opportunity will there be presented for the en- 
 try into the situation of conditions adversely af- 
 fecting the right of the architect to proper com- 
 pensation for the time and thought which he has 
 expended, the expenses which he has incurred, 
 and the services which he has rendered.
 
 CHAPTER IV 
 
 DUTIES AND LIABILITIES OF THE 
 ARCHITECT 
 
 39. In General In holding himself out to 
 the public as a practicing member of the archi- 
 tectural profession the architect assumes the same 
 responsibility, for reasonable skill and care in the 
 public service, as that which rests upon a lawyer 
 or a physician ; 1 and under the rule that one who 
 publicly professes to possess skill in a given art 
 thereby represents or intimates to all the world 
 that he possesses the ability and skill requisite to 
 practice that art, 2 he who holds himself out to the 
 public as an architect is presumed to possess the 
 skill and ability requisite and necessary for the 
 proper practice of the architectural profession. 
 
 The broad general duty of an architect to act 
 in the utmost good faith in his employer's inter- 
 est, and to do no act which may hinder him in giv- 
 ing that disinterested and honest service which 
 his relationship with his client demands, has al- 
 ready been referred to. It remains to consider 
 the more specific duties and liabilities of the archi- 
 tect, such as the preparation of plans and specifi- 
 
 1 Coombs v. Beede, 89 Me. B. (N. S.) 236, and see opin- 
 
 187. ion of Jervis C J. in Jenkins 
 
 2 Harmer v. Cornelius, 5 C. v. Betham, 15 C. B., at p. 189. 
 
 67
 
 68 LAW OF ARCHITECTURE AND BUILDING 
 
 cations, the superintendence of the work and the 
 issuance of certificates. 
 
 It should be noted, preliminarily, that an archi- 
 tect is, in general, liable for want of care or skill 
 in the execution of his work to his employer only, 
 and is not liable to third persons for damages re- 
 sulting from accidents or injuries sustained after 
 the completion of the work. 3 The legal distinc- 
 tion, in this connection, between a tort to a third 
 person, predicated upon the omission of some act 
 or obligation to the public as such, and a tort 
 predicated upon a direct injury to a specific third 
 person, has been well stated to be that, in the event 
 that one "omits to do some duty or obligation 
 which he owes to his employer and which is a tort 
 to a third person, he is not liable, but when he 
 commits a tort which is an injury to anyone, there 
 is no reason why he should not be liable for his 
 acts as anyone else." The writer so stating the 
 rule cites as examples thereof a case, on the one 
 hand, of a superintendent of a plantation who 
 neglected and refused to keep open a drain on his 
 employer's land, thereby flooding the lands of the 
 neighbors and damaging them, and who was held 
 not to be liable to the neighbors ; and, on the other 
 hand, the case of an architect in charge, who 
 adopted a bad plan of construction, as the result 
 of which, and by reason of his negligence, mis- 
 feasance and failure to observe the skill and care 
 imposed by law, a disaster resulted, and who was 
 
 3 Mayor v. Cunliff, 2 N. Y. 165 ; Wait, Eng. & Arch. Jurispru- 
 dence, 842.
 
 DUTIES AND LIABILITIES OF THE ARCHITECT 69 
 
 held to be responsible in damages to the workmen 
 injured, as well as to the contractor. 4 
 
 40. Plans and Specifications. It has already 
 been noted that, as a result of defects in his plans, 
 an architect may be debarred from recovering his 
 compensation for them and it is also true that for 
 these defects he may in addition be liable in dam- 
 ages. 5 This liability, providing the defects upon 
 which it is based would be patent to one skilled in 
 the art though not apparent, perhaps, to one lack- 
 ing such expert training, would not, it seems, be 
 affected by the fact that the building had been 
 accepted and the superintendence of it ratified. 6 
 
 41. Mistakes. Where there are mistakes in 
 plans and specifications which increase the cost of 
 the building and which proper skill and care 
 would have obviated, the architect is, apparently, 
 liable ; 7 and likewise it has been held to be a 
 breach of the duty which he owes to his employer, 
 if he allow a foundation to be so constructed that 
 it is not deep enough, or not protected sufficiently 
 otherwise, to prevent the cracking of a wall which 
 it supports. 8 
 
 42. Negligence Measure of Damages. In 
 an action to recover damages for the negligence 
 of an architect in the preparation of plans, the 
 
 *Wait, Eng. & Arch. Ju- Rep. (Wash. Sup. Ct. Dec. 
 
 risprudence, 842, citing: 1893), 380. 
 
 Feltus v. Swan, 62 Miss. 415, * Shipman v. State, 43 Wis. 
 
 and Lottman v. Barnett, 62 381. 
 
 Mo. 159. 7 Erskine v. Johnson, 23 Neb. 
 
 5 Shipman v. State, 43 Wis. 265. 
 
 381 ; Niver v. Nash, 35 Pac. 8 Schreiner v. Miller, 67 
 
 Iowa 91.
 
 70 LAW OF ARCHITECTURE AND BUILDING 
 
 measure of damages has been fixed at an amount 
 equal to the difference between the value of the 
 building, as actually designed and constructed, 
 and the value as it would have been, if the build- 
 ing had been properly designed and constructed. 9 
 
 43. Limitation of Rule Architect not Liable 
 If Plans not Adhered To. While the rule is clear 
 that damages may be recovered which are the re- 
 sult of defective plans and specifications, yet it 
 must not be supposed that such damages can be 
 recovered if, in the erection of the building and 
 without the fault of the architect, there has been a 
 substantial variance from the plans and specifica- 
 tions as submitted by the architect. This is on 
 the theory that an architect, in warranting the 
 safety or proper construction of the building 
 which he designs, warrants it on the assumption 
 and understanding that all of the substantial con- 
 ditions stated, shown, or included by him in the 
 specifications, and which in his opinion may be 
 necessary and essential to the proper construction 
 of the building, shall be carried out and observed. 
 
 44. Burden of Proof Illustrations of Rule. 
 Where damage of this character is claimed, the 
 burden is upon the plaintiff to prove a substantial 
 compliance with the plans and specifications. 
 The leading case on this point and a case in which 
 the law is stated at some length and with great 
 clearness was decided by the Court of Appeals of 
 New York State in October, 1893. In that case, 
 
 9 Larrimore v. Comanche County (Tex. Civ. Apps. Sep. 1895) 
 32 S. W. 367.
 
 DUTIES AND LIABILITIES OF THE ARCHITECT 71 
 
 an action was brought against the architects (a 
 firm) to recover damages claimed to have resulted 
 by reason of defective plans, specifications, and 
 drawings, prepared by them for an opera house. 
 The sole defect complained of was in regard to 
 the plan of the proscenium arch which was in 
 segmental form, thirty-six feet long with a rise 
 of eight feet. It was built of brick and, upon the 
 removal of the cradle supporting it, fell, necessi- 
 tating its reconstruction. In the court below, the 
 plaintiff recovered as damages, a sum equal to the 
 cost of rebuilding it and the added cost of repair- 
 ing the injury which its fall caused to the other 
 parts of the building. 
 
 The plaintiff, an assignee, based his claim in 
 particular upon the failure of the defendants to 
 make provision in the plans and drawings for 
 a blind arch over the segmental arch, on the 
 theory that if such had been shown and provided 
 for, it would have been constructed and no dam- 
 age would have resulted. The plaintiff gave evi- 
 dence in the court below which tended to show 
 that the fall of the arch might have been due to 
 the fact that it was too flat and that the spring 
 necessary for self-support in an arch of the width 
 of the one in question, could not be given by a rise 
 of eight feet therein. The plaintiff was also al- 
 lowed to give evidence that the arch was so 
 planned and constructed that its thrust fell with- 
 out, instead of within, the abutments upon which 
 it rested, and that its fall may have been due to 
 this fact also. The plan of the arch required that
 
 72 LAW OF ARCHITECTURE AND BUILDING 
 
 stone skew backs be put in at each heel, at the 
 points where the arch met the abutments. It ap- 
 peared that the purpose of these skew backs was 
 to furnish a firm foundation for the arch and to 
 distribute its thrust over a larger area of the abut- 
 ments. One of the defendants, a man of large 
 experience, testified to the preparation of plans 
 for and the building of many theaters and opera 
 houses and the placing in many of them of seg- 
 mental arches having no greater rise than the one 
 in question, without experiencing any difficulties, 
 and he also testified that he always made provi- 
 sion in such plans for stone skew backs and con- 
 sidered them elements of vital importance to the 
 support of the structure. It appeared that in 
 building the arch in question these skew backs 
 were omitted and that the responsibility for their 
 omission rested with plaintiff's superintendent. 
 Experts testified that skew backs of stone were 
 necessary to the proper construction of the arch, 
 bearing out the testimony of defendant on this 
 point. The Court below submitted the question 
 to the jury on the finding that the arch fell on ac- 
 count of the omission of the stone skew backs, 
 holding that there was sufficient evidence to sup- 
 port a finding to that effect and instructing the 
 jury that if they found this to be the case, the 
 plaintiff could not recover. The jury evidently 
 did not so find for they gave judgment for the 
 plaintiff. Judge Maynard of the Court of Ap- 
 peals in reviewing this decision said :
 
 DUTIES AND LIABILITIES OF THE ARCHITECT 73 
 
 "But we think it was error to submit this question to 
 the decision of the jury. When it was conceded that the 
 plaintiff's assignor had not followed the plans in this 
 respect, and it appeared that the failure to put in the stone 
 skew backs may have caused the loss, which the plaintiff 
 is seeking to impose upon the defendants, they were 
 entitled to a ruling as a matter of law, that the plaintiff 
 could not recover, and the complaint should have been 
 dismissed. He had failed to establish a performance of 
 the conditons precedent, which was essential to the sup- 
 port of his cause of action. One of the principal allega- 
 tions of the complaint had been left unproven. The ac- 
 tion is ex contractu, and the defendants cannot be made 
 liable upon a contract which they never assented to. 
 There is no principle upon which a case of this kind can 
 be excepted from the rule, so firmly established, that 
 every stipulation which the parties have inserted in a con- 
 tract by way of conditions to be performed is to be 
 deemed material . . . 10 The plaintiff's assignor was 
 contracting for the exercise of the technical knowledge 
 and skill of the defendants, and it was upon the infallibil- 
 ity of their own judgment that the defendants relied when 
 they made their guaranty that if the arch was constructed 
 in accordance with their directions it would stand. They 
 regarded a stone skew back of vital importance for its 
 security and stability, and their promise to make good 
 any loss which might occur if it fell, was upon condition 
 that this method of construction was adopted, and we 
 are not permitted to say that they would have entered 
 into the agreement had they known that these essential 
 supports were to be omitted. 
 
 "It is not necessary to hold that a literal performance 
 
 10 Citing, Dauchey v. Drake, v. Fry, 121 id. 470 ; Norring- 
 
 85 N. Y. 407; Hill v. Blake, 97 ton v. Wright, 115 U. S. 188; 
 
 id. 216 ; Tobias v.Lissberger, 105 Glaholm v. Hays, 2 M. & G. 
 
 id. 404; Bank of Montreal v. 265. 
 Recknagel, 109 id. 482; Clark
 
 74 LAW OF ARCHITECTURE AND BUILDING 
 
 of the condition was required. A variance, confessedly 
 immaterial, or a departure from the plans in a separate 
 and independent part of the building, having no struc- 
 tural relation to the defective member, would present 
 a different case for our consideration. But where the 
 variance is not disputed, and involves the integrity of the 
 mode of construction of the affected part, and is so far 
 material that it may have been the direct cause of the 
 injury for which the owner seeks to hold the architect 
 responsible, it must be held, we think, that the plaintiff 
 has failed to establish the cause of action upon which 
 he relies." " 
 
 In another State the Court seems to have gone 
 so far as to substantially assume, as a matter of 
 legal inference, that the architect is negligent 
 where the walls of a building crack on account of 
 a defective foundation ; 12 but the New York doc- 
 trine would seem certainly to be the more equi- 
 table, safeguarding as it does the architect against 
 claims for damage occasioned through no fault of 
 his own, considering fully each case in the light 
 of the special facts developed, and keeping more 
 clear the distinction between the architect and the 
 owner and the particular duties of each, in deter- 
 mining whether the damage is or is not traceable 
 to a lack of skill or neglect on the part of the ar- 
 chitect. 
 
 45. Repairs and Superintendence. Where, 
 on account of defects or of some oversight on the 
 part of the architect it is necessary that repairs 
 be made, the claimant cannot make these repairs 
 
 11 Lake v. McElfatrick, 139 12 Schreiner v. Miller, 67 
 N. Y. 349 reversing 46 N. Y. Iowa 91. 
 St. Rep. 437, 19 N. Y. Supp. 494.
 
 DUTIES AND LIABILITIES OF THE ARCHITECT 75 
 
 at an unnecessary expense, or in an unnecessarily 
 extravagant form, and recover as damages the 
 amount of his disbursements in so doing. He 
 must confine his claim to such sum as will repre- 
 sent the cost of effecting the repairs as economi- 
 cally as it is possible to effect them, consistent 
 with proper workmanship and construction. It 
 must always be borne in mind, also, that the 
 architect does not guarantee satisfaction, and 
 that in the absence of special circumstances or 
 agreements, his duty is fulfilled when he has pre- 
 pared the plans and carried out the provisions of 
 his contract with reasonable skill, diligence and 
 care. 
 
 46. Reasonable Care and Diligence Required 
 Illustrations of Rule. The rule requiring the 
 exercise of reasonable care and diligence on the 
 part of the architect in the preparation of plans 13 
 is equally applicable to his position as superin- 
 tendent. 14 If such reasonable care and diligence 
 be not observed, the architect will be liable to the 
 owner for any damage which may result to the 
 latter by reason of such neglect. 15 
 
 It is not necessary that the architect give to the 
 matter of superintendence more than reasonable 
 and ordinary care, or exercise therein more than 
 reasonable and ordinary diligence; nor do ordi- 
 
 18 Johnson v. Wanamaker, riman v. Fowler, 37 N. J. L. 
 
 17 Pa. Sup. Ct. 301. 89; Coombs v. Beede, 89 Me. 
 
 14 Straus v. Buchman et al., 187. 
 
 96 N. Y. App. Div. 270 ; Gil- 15 Merriman v. Fowler, 37 
 
 man v. Stevens, 54 How. Pr. N. J. L. 89; Lottman v. Bar- 
 
 <N. Y. Super. Ct.) 197; Mer- nett, 62 Missouri 59.
 
 76 LAW OF ARCHITECTURE AND BUILDING 
 
 nary care and diligence require that he superin- 
 tend the work so closely as to follow every move- 
 ment of every workman, and be able to discover 
 all variations of every character from the con- 
 tract provisions and all defects in execution, in- 
 cluding such defects as can only be detected by 
 the exercise on his part of extraordinary dili- 
 gence. 16 
 
 To avoid the charge of negligence it is not es- 
 sential that the architect prove the exercise of 
 "the utmost skill such as only a few members of 
 any profession attain to," but he must show what 
 "other architects will generally consider to be a 
 reasonable degree of professional knowledge and 
 skill." 17 
 
 In this connection it should be noted that what 
 might perhaps be a reasonable degree of skill in 
 one locality, would not be in another. For in- 
 stance, the degree of attention which an architect 
 may properly give to country work, unhampered 
 by city ordinances, would not be at all sufficient 
 for work done in a large city, under local rules, 
 regulations and building ordinances, which must 
 be given strict attention by the architect, if he is 
 to secure the rights of his client and the proper 
 conduct of the work. 
 
 It may happen that the superintendence of a 
 
 19 Petersen v. Rawson, 34 Court 463 ; Vigeant v. Scully, 
 N. Y. 370, reversing 2 Bos- 20 111. App. Court 437. 
 well, N. Y. 234 ; Hubert v. 1T Clark on Architecture, p. 
 Aitken, 15 Daly, N. Y. 237; 28. 
 Stewart v. Boehme, 53 111. App.
 
 DUTIES AND LIABILITIES OF THE ARCHITECT 77 
 
 building will be in the hands of an architect who 
 did not prepare, and had no part in the prepara- 
 tion of, the plans, but the fact that the plans were 
 made by another architect before the superintend- 
 ing architect took charge, will not relieve the lat- 
 ter of responsibility for defects in the building as 
 erected under his supervision ; 18 and while the ar- 
 chitect is not held to the necessity of preventing 
 every slightest shade of variation from the plans 
 and specifications, he must, nevertheless, bestow 
 such care and attention as may be necessary to 
 detect variations or faults which are of such a 
 character as to be of real importance and ma- 
 teriality. 19 
 
 The architect and the builder may be jointly 
 and severally liable to the owner in the case of 
 neglect attributable to them jointly. In New 
 Jersey this doctrine has been applied to the extent 
 of holding that, where a joint neglect by the 
 builder and architect is proven, a suit may be 
 maintained against the architect alone, and that 
 the fact that the owner has, at the same time, held 
 back from the contractor a part of the money due 
 to the latter, upon the ground that the contractor 
 is equally liable with the architect, will be no bar 
 to the action against the architect himself. 20 So 
 where a floor has sunk on account of the insuffi- 
 ciency of timber used, the architect and the builder 
 
 18 Scott v. Christ's Church Y. 370; Wait, Eng. & Arch. 
 Cathedral, i L. C L. J. 63. Jur. 839, p. 759. 
 
 19 Petersen v. Rawson, 34 N. 20 Newman v. Fowler, 37 N. 
 
 J. L. 89.
 
 78 LAW OF ARCHITECTURE AND BUILDING 
 
 have been held jointly and severally liable for the 
 resultant damages. 21 
 
 In New York, in a somewhat similar case, de- 
 cided in July, 1904, where it was proven that the 
 architect visited the building as superintendent on 
 an average, substantially, of at least once a day, 
 but, between his visits, important floor timbers 
 were placed, and in such a manner as to be in 
 direct violation of law, and this occurred after the 
 owner had taken possession, and necessitated the 
 making of important repairs, the Court, stating 
 the rule that reasonable care and diligence must 
 be exercised by the architect in the superintend- 
 ence of the work, and that the question whether 
 or not the architect is negligent is a question of 
 fact to be passed upon by the jury, held that : 
 
 "It was the duty of the defendants under their con- 
 tract with plaintiff, not only to see that the beams were 
 properly placed, but especially to see that the placing of 
 them conformed to the requirements of the statute. This 
 they failed to do. . . . The evidence . . . established the 
 fact that numerous and extensive repairs were made nec- 
 essary by reason of the defective work, the cost of which 
 and other work necessary for putting the building in the 
 condition in which it would have been had the defendants 
 performed their contract, would have justified a larger 
 verdict. The plaintiff was entitled to recover a sum 
 which would leave him as well off as he would have been 
 had the defendants fully performed their contract." 22 
 
 The duty of the architect in regard to the ma- 
 
 21 David v. McDonald, 8 L. 22 Straus v. Buchman et al., 
 C (Lower Canada) Jurist 44, 96 N. Y. App. Div. 270, at 273- 
 14 L. C. Rep. 31. 274, citing 8 Am. & Eng. Enc. 
 
 of Law, 2d ed. 634.
 
 DUTIES AND LIABILITIES OF THE ARCHITECT 79 
 
 terial used applies, of course, to the character of 
 the material itself, as well as to the manner in 
 which it is used in the work of construction, and 
 the measure of damages for neglect in permitting 
 the use of inferior material or labor is a sum equal 
 to that which will be required to properly repair 
 and make a good job of the work in question. 23 
 Where by the contract the superintendent, as a 
 part of his duties, is required to furnish monthly 
 estimates of the work done, this provision is not 
 necessarily, it seems, to be taken as meaning that 
 "he must furnish correct and accurate estimates," 
 the monthly estimates referred to being in their 
 nature and of necessity, mere approximations. 24 
 On the broad general question of the degree of 
 care and diligence required of an architect in the 
 performance of his duties as superintendent and 
 supervisor of construction, one of the leading 
 cases, if not the leading case, in the American 
 courts, is a case which came before the Court of 
 Common Pleas of the City and County of New 
 York, in 1889. Following the first decision in 
 this case a re-argument was held and the judg- 
 ment affirmed and later the same judgment was 
 again affirmed in all ways by the Court of Appeals. 
 The plaintiffs were the architects who prepared 
 the plans for, and supervised the construction of, 
 the building. After the completion of the build- 
 ing it was discovered that the flues, which con- 
 
 28 Oilman v. Stevens, 54 381, and see i Redfield on 
 How. Pr. (N. Y.) 197. R. R., 6th ed. 116. 
 
 2 * Shipman v. State, 43 Wis.
 
 8o LAW OF ARCHITECTURE AND BUILDING 
 
 nected with the boiler flues, were not sufficiently 
 large to meet the purposes for which they had 
 been designed. The defendant claimed that no 
 recovery could be had for the reason that the 
 contract was entire and that the plaintiffs had not 
 performed their contract, in that they were negli- 
 gent in the designing and construction of the 
 flues. The flues were not omitted from the 
 plans, but were set down with the same detail as 
 were the other parts of the building. The Court 
 held that it could not be said that the plaintiffs had 
 not entirely performed their contract as to the 
 plans; that they had performed it completely, but 
 that they had performed it negligently, and that 
 while the defendant was entitled to deduct the 
 amount of the damage caused by the faulty design 
 of the chimney from the amount due under the 
 contract, for the drawing of the plans and the 
 superintending of the construction of the house, 
 nevertheless, the defect in construction could not 
 be urged to defeat all recovery on the contract. 
 Speaking of the degree of diligence and care re- 
 quired of the architects in their superintending 
 capacity, the Court gave the following very clear 
 statement of the law by which the duties of the 
 architect, in this respect, are governed : 
 
 "The learned counsel would not claim that an archi- 
 tect is bound to spend all his time at a building which 
 is going up under his professional care, so that no fraud 
 or negligence can be committed by any of the contrac- 
 tors. The counsel would not contend that the architect 
 is an insurer of the perfection of the mason work, the
 
 DUTIES AND LIABILITIES OF THE ARCHITECT 81 
 
 carpenter work, the plumbing, etc. He is bound only to 
 exercise reasonable care and to use reasonable powers 
 of observation and detection, in the supervision of the 
 structure. When, therefore, it appears that the architect 
 has made frequent visits to the building, and in a gen- 
 eral way has performed the duties called for by the cus- 
 tom of his profession, the mere fact, for instance, that 
 inferior brick have been used in places, does not estab- 
 lish, as a matter of law, that he has not entirely per- 
 formed his contract. He might have directed at one of 
 his visits that portions of the plumbing work be packed 
 in wool; upon his next return to the building the pipes 
 in question might have been covered with brick in the 
 progress of the building. If he had inquired whether 
 the wool-packing had been attended to, and had received 
 an affirmative answer from the plumber and the brick- 
 layer, I am of opinion that his duty as an architect, in 
 the matter of the required protection of said pipes from 
 the weather, would have been ended. Yet, under these 
 very circumstances, the packing might have been inten- 
 tionally or carelessly omitted in fraud upon both archi- 
 tect and owner, and could it still be claimed that the 
 architect had not fully performed his work ? The learned 
 counsel for appellant is, in effect, asking us to hold that 
 the defects of the character above named establish, as 
 matter of law, that plaintiffs have not completely per- 
 formed their agreement. An architect is no more a mere 
 overseer or foreman or watchman than he is a guarantor 
 of a flawless building, and the only question that can 
 arise in a case where general performance of duty is 
 shown is whether, considering all the circumstances and 
 peculiar facts involved, he has or has not been guilty of 
 negligence. This is a question of fact, and not of law. 
 Upon consideration I am more fully convinced of the 
 correctness of our conclusions reached after the former 
 argument." 2B 
 
 28 Hubert v. Aitken, 5 N. Y. Supp. 839, opinion Larramore, C. J.
 
 82 LAW OF ARCHITECTURE AND BUILDING 
 
 Another leading case, also in New York, and 
 decided by the Court of Appeals of that State, is 
 illustrative of the same doctrine. In this second 
 case, through an error, the front parlor windows 
 of a building were so constructed so as to be two 
 and three quarter (2^4) inches higher than was 
 shown by the plans, and the same distance higher 
 from the floor than the back parlor windows. It 
 appeared that the plaintiff the architect had 
 been diligent in his attention to the details of 
 superintendence, and that the defect was caused 
 by the masons not having accurately followed and 
 conformed to the plans and specifications. The 
 Court held, one justice dissenting, that the defects 
 in question were not chargeable to the plaintiff, 
 and that they afforded the defendant no justifica- 
 tion for withholding from the architect payment 
 of the amount agreed upon as the latter's compen- 
 sation for his services. The Court said : 
 
 "The plaintiff agreed to make 'the plans, sections, 
 elevations, specifications, and to superintend the progress' 
 of the building to be erected. It was not his duty to 
 do the work. The agreement between the defendant 
 and his masons provides that the masons 'shall well and 
 sufficiently erect and finish' the building in question 
 'agreeably to drawings and specifications made by Freder- 
 ick Petersen.' It was not the duty of the plaintiff to 'lay 
 out' the work, as it is technically termed. This, it was 
 expressly provided, should be done by the mason, who 
 agrees 'to lay out his work himself.' 
 
 840, affirming 2 N. Y. Supp. and affirming opinion of Larra- 
 711 ; 15 Daly (N. Y.) 237 (in- more, C. J.) ; judgment affirmed 
 eluding both original opinion without opinion, 123 N. Y. 655.
 
 DUTIES AND LIABILITIES OF THE ARCHITECT 83 
 
 "The plaintiff was bound to furnish the plans, speci- 
 fications and elevations, and the mason was bound to lay 
 out the work. In other but perhaps not plainer words, 
 the plaintiff was bound to put down, and to show on 
 paper, how every part was to be built, and the mason 
 was to stake it out, measure his lumber, and make actual 
 measurements on the ground and in the erection for such 
 building. I do not think it was the duty of the plaintiff 
 to measure the joists or timbers of which the different 
 stories were to be constructed, and to determine by actual 
 measurement that the ceiling of the first story had an 
 elevation of thirteen feet, and the second had an eleva- 
 tion of eleven feet, or to measure the thickness and depths 
 of the brick or stone walls. . . . The first story windows 
 in the front parlor were to be sixteen inches from the 
 floor, and the windows themselves were probably ten 
 or eleven feet in height. The plaintiff came from day 
 to day to superintend the progress of the work, and while 
 thus superintending, was he bound to have ascertained 
 that the window sills in the front parlor were two and 
 three-quarter inches higher from the floor, than was 
 authorized by the plan? To an inexperienced eye the 
 difference would not have been perceptible; but should 
 the knowledge and skill of a good architect at once have 
 detected it? The testimony is not satisfactory to estab- 
 lish the affirmative of this proposition. Wm. Thomas, 
 an archiect, says, 'that he does not consider that the build- 
 ing has been properly superintended. If it had been, 
 the mistake would have been found out when the first 
 story beams were on. Comparing the second story 
 beams, I should have found it out.' Mr. Windham, an 
 architect, thinks the difference in height between the par- 
 lor windows in front and in rear, ought to have been 
 discovered as soon as they began to lay the brown stone 
 in front. Mr. Ritch, on the other hand, also an architect, 
 says, 'that it is impossible to say when the error should 
 have been discovered. It might have passed the observa-
 
 84 LAW OF ARCHITECTURE AND BUILDING 
 
 tion of the architect, till the building was completed. It 
 is an error likely to pass any one's observation. It would 
 most likely pass his notice until the cornices were put 
 up.' These were the only architects who testified on 
 this point. It was proved by various witnesses that the 
 plaintiff was diligent in his attendance upon the building. 
 The respectable and intelligent referee who had the wit- 
 nesses personally before him, and was able to form a 
 better opinion of their intelligence and integrity than one 
 who did not see them, must have held that the plaintiff 
 was not bound to have discovered this defect. Mr. Trap- 
 hagen testified that he told the plaintiff the balcony was 
 too high, and that he said it was all right. He was one 
 of the contractors for the mason work, and it was ap- 
 parently a question whether the fault was on his part or 
 that of the plaintiff. The referee did not rely on his evi- 
 dence. He found that the plaintiff had bestowed as much 
 personal attention upon the building as was necessary, 
 and that the variations mentioned were not caused by 
 carelessness, negligence or inattention on his part. I do 
 not find it necessary to differ with him." 26 
 
 It will sometimes happen that a change of more 
 or less importance which has been requested by 
 the owner, as for instance a change in the location 
 of gas or electric outlets, may be overlooked by 
 the architect. If the change be spoken of and 
 brought to the attention of the architect before 
 the plans and specifications are approved and then 
 these plans and specifications, not including the 
 change, are examined and approved by the owner, 
 the latter, by his approval, following his examina- 
 tion of them, may estop himself from later claim- 
 ing damages from the architect for the latter's 
 
 26 Petersen v. Rawson, 34 N. Y. 370, at pages 372, 373 and 
 374-
 
 DUTIES AND LIABILITIES OF THE ARCHITECT 85 
 
 failure to provide the change required. This rule 
 would not be applicable to a situation where the 
 owner, to the knowledge of the architect, signed 
 the contract and approved the plans and speci- 
 fications without reading or examining them, 
 and in reliance on the assurance of the archi- 
 tect that everything necessary and desired had 
 been included and provided for. Where the 
 change is requested after the plans and specifica- 
 tions have been approved and the contract signed, 
 it is the duty of the architect to see that the proper 
 instructions of his client are carried out, the work 
 under these circumstances being in the nature of 
 an extra ; and for negligence or improper skill or 
 lack of diligence in carrying out the directions of 
 the owner, the architect will be liable within the 
 ordinary rule requiring the exercise by him of 
 reasonable skill and diligence. 
 
 The architect cannot escape liability for damage 
 resulting from steps taken subject to his direc- 
 tion or on his advice and approval, on the mere 
 plea that he was not present when the damage re- 
 sulted ; and where a wall fell as a result of a jack- 
 screw worked under the supervision of one em- 
 ployed by the owner on the advice of the architect, 
 and subject to the latter's direction, and it was 
 shown that the architect approved the use of the 
 jackscrew, he was held liable in damages for the 
 death of a workman as a result of the falling of 
 the wall, despite the fact that the architect was 
 not present at the time the accident occurred. 27 
 
 27 Lottman v. Bafnett, 62 Mo. 159.
 
 86 LAW OF ARCHITECTURE AND BUILDING 
 
 47. Negligence a Question of Fact. The 
 question whether there has or has not been negli- 
 gence or want of skill in a given case is a ques- 
 tion of fact and not of law ; 28 but the matter of 
 negligence, while a question of fact, and, conse- 
 quently, a question for the jury, should not be left 
 to the latter in such a way as to refer to them the 
 question of what it is proper or improper in the 
 broad sense for the architect to do, entirely unre- 
 strained by the evidence or special circumstances 
 of the case. Where, on the facts, it appears that 
 the architect has used reasonable diligence, care, 
 and skill, it is improper to leave it to the jury to 
 decide whether he has properly performed his 
 duties. 29 
 
 48. Burden of Proof. The burden of proof 
 in a proceeding to recover damages for negligence 
 or want of skill on the part of the architect is upon 
 him who seeks to establish it. 30 On the other 
 hand, it is no answer to a charge of negligence to 
 plead reliance on the statements of others. 31 
 
 49. Architect as Arbitrator. In many cases 
 the architect will, under the terms of his contract, 
 be called upon to act as referee or arbitrator in the 
 
 28 Straus v. Buchman, 96 80 Oilman v. Stevens, 54 
 
 N. Y. App. Div. 270; Hubert How. Pr. (N. Y. Supr. Ct.) 
 
 v. Aitken, 15 Daly (N. Y.) 237; 197 at 207. 
 
 19 N. Y. St. Rep. 914; 2 N. Y. 31 Moneypenny v. Hartland 
 
 Supp. 711, affirmed (on re-ar- I C. & P. (Carrington & 
 
 gument) 5 N. Y. Supp. 839, 15 Payne) 352; 2 C. & P. 378; 
 
 Daly (N. Y.) 241, affirmed by Hubert v. Aitken, 15 Daly (N. 
 
 Court of Appeals, 123 N. Y. Y.) 237, judg. aff'd, 123 N. Y. 
 
 655- 655, supra. 
 
 28 Vigeant v. Scully, 20 111. 
 Apps. 437.
 
 DUTIES AND LIABILITIES OF THE ARCHITECT 87 
 
 determination of some question arising during 
 the progress of the work. In such an event a 
 new rule of law is to be considered, namely, that a 
 judicial officer is not liable in matters connected 
 with the exercise of his judicial duties, provided, 
 and so long as, he exercises these duties honestly. 
 This rule includes not only judges of courts, but 
 all officers in general who are necessarily called 
 upon to exercise duties of a judicial or quasi-judi- 
 cial nature or duties to be performed in accord- 
 ance with the dictates of their judgment. 32 
 Where, therefore, an architect "undertakes to 
 give a decision as to any matter, though he may 
 not be an arbitrator in a strict sense of the word, 
 and is not bound to exercise all the judicial func- 
 tions an arbitrator would have to exercise, never- 
 theless, he is not liable to an action for want of 
 skill." 33 
 
 50. Certificates. Many of the more impor- 
 tant questions, of interest to the architect in the 
 matter of the issuance of certificates, arise as be- 
 tween him and the builder, or in actions by the 
 builder against the owner to recover the contract 
 price. These questions are considered elsewhere. 34 
 
 The architect is, however, under certain definite 
 duties and liabilities to the owner with respect to 
 the issuance of certificates and, in issuing them, 
 
 82 Jones v. Brown, 54 Iowa 83 Wait, Eng. & Arch. Jur., 
 
 74; Pappa v. Rose, L. R. 7 C. 846; Pappa v. Rose, L. R. 7 
 
 P. 32 ; I Eng. Rep. 87, aff'd C. P. 32, 525, supra. 
 
 L, R. 7 C. P. 525, 3 Eng. Rep. ** See 11, 55, 66, 9 5, 97, 98, 
 
 375; Wait, Eng. & Arch. Jur. 99, 114. 
 844 ; Mechem on Public Offi- 
 cers, 638-639-
 
 88 LAW OF ARCHITECTURE AND BUILDING 
 
 he must exercise that same reasonable care and 
 diligence which is required of him in the prepara- 
 tion of his plans and in the supervision of the 
 work of construction. This rule has been ap- 
 plied to circumstances where the contractor failed 
 and, as a result of his failure, the owner was com- 
 pelled to complete the work at an expense exceed- 
 ing the amount of the balance due to the con- 
 tractor. It appeared, in the case referred to, 35 
 that the architect had given certificates in the 
 amount of $2,950.00 when he should have only 
 certified the sum of $2,295.00. The owner was 
 allowed to deduct from the amount paid the archi- 
 tect for his services, the excess amount which he 
 had paid to the contractor as a result of the error 
 in certification. This doctrine of the liability of 
 the architect in the matter of the issuance of cer- 
 tificates, based upon his neglect to use reasonable 
 care and diligence, should be construed and read 
 in the light of the fact that where no special man- 
 ner of inspection is specified in the contract the 
 courts, in at least one of the States, have held that 
 there is no duty imposed upon the architect to 
 make, before issuing a certificate, a special inspec- 
 tion of the work done, sufficiently detailed to 
 satisfy him not only that the work covered by the 
 particular certificate in question has been per- 
 formed, but that it has been performed properly 
 and in accordance with the contract require- 
 ments. 36 
 
 86 Irving v. Morrison, 27 C. 36 Vigeant v. Scully, 20 111. 
 P. (Upper Canada) 242. App. 437.
 
 CHAPTER V 
 
 DEATH OF ARCHITECT AND 
 OWNERSHIP OF PLANS 
 
 51. Death of Architect. The contract be- 
 tween the owner and the architect, as in the case 
 of any other contract or relationship of a profes- 
 sional character, is in its very nature personal, 
 and it follows, accordingly, that where the archi- 
 tect dies before the work on which he is engaged 
 has been completed, the right to complete the 
 work does not survive to his executor, and that, 
 on the other hand, the owner can not, under such 
 circumstances, impose upon the executor a lia- 
 bility to perform it. 1 This rule does not mean, 
 however, that where, under his contract with the 
 owner, the architect has, at the time of his death, 
 already earned and become entitled to a part of 
 his compensation, the executor can not protect 
 the estate in this connection; and where one em- 
 ployed as a consulting engineer had partly com- 
 pleted, prior to his death, the work on which he 
 was engaged and, under his contract of employ- 
 ment, had earned certain of the installments in the 
 form of which, quarterly, it was agreed that his 
 compensation should be paid to him, his personal 
 representative was allowed to recover from the 
 
 i Stubbs v. Hollywell R. Co., Hall v. Wright, 96 E. C. L. 
 L. R. 2 Exch. 311; and see 746. 
 
 89
 
 90 LAW OF ARCHITECTURE AND BUILDING 
 
 employer the amount of the installment which had 
 been earned at the time of the death of the 
 engineer. 2 
 
 52. Ownership of Plans. Whether the plans 
 prepared by the architect are to be considered his 
 property, or the property of his client, is a ques- 
 tion of long standing between them. As a prac- 
 tical matter the architects, by insisting on their 
 claim that the plans are their property, seem to 
 have induced the public generally to acquiesce in 
 this point of view. As a matter of fact, however, 
 unless there be a specific provision in the contract 
 whereby it is agreed that the plans are to be and 
 remain the property of the architect, they must be 
 legally considered, it seems, as the property of the 
 employer who has ordered, accepted, and paid for 
 them. 3 This is on the perfectly logical theory 
 that the plans are an essential part of the building 
 contract, and that while the architect, under the 
 rule that work embodied in some material form 
 and resulting from an individual's mental concep- 
 tion and labor is to be considered the property of 
 the one creating it, has property rights in the 
 plans prepared by him, yet when these plans have 
 been prepared, pursuant to his employment, and 
 the services expended in their production have 
 been paid for, and the plans published to the world 
 by riling or otherwise, the right of ownership in 
 
 2 Stubbs v. Hollywell R. Co. delphia, 9 Philadelphia, Pa. 
 
 L. R. 2 Exch. 311, supra. 550; Wright v. Eisle, 86 N. Y. 
 
 8 Moffatt v. Scott, 8 L. C. A. D. 356. 
 Jur. 310; Windrim v. Phila-
 
 DEATH OF ARCHITECT OWNERSHIP OF PLANS 91 
 
 the plans passes from the architect to the client 
 who has employed him. The New York court 
 has stated the matter well in the case last cited, 4 
 where, citing and quoting from a decision 5 affirm- 
 ing the rule that 
 
 "Every new and innocent product of mental labor 
 which has been embodied in writing or some other ma- 
 terial form," is "the exclusive property of its author, the 
 law securing it to him and restraining any other person 
 from infringing his right," 
 
 the Court goes on to say that, nevertheless, where 
 the architect prepares plans and specifications and 
 files them with the Building Department and 
 superintends the construction of the house and re- 
 ceives his compensation, he has, thereby, 
 
 "published his work to the world and can have no ex- 
 clusive right in the design or in its reproduction. . . . 
 It seems to us that all of the property rights in these 
 plans, if they had any value as property after the publi- 
 cation, belonged to Litson (the client), rather than to the 
 plaintiff (the architects) in this action . . ." 
 
 It is of interest to note that Article 7 of the 
 new Standard Form of the General Conditions 
 of the Contract, issued by the American Institute 
 of Architects, and included in Appendix B, pro- 
 vides that: "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 contract set, 
 
 * Wright v. Eisle, 86 N. Y. 8 Palmer v. DeWitt, 47 N. 
 A. D. 356. Y. 532, citing Shortt on the 
 
 Law of Literature, 48.
 
 9^ LAW OF ARCHITECTURE AND BUILDING 
 
 are to be returned to him on request, at the com- 
 pletion of the work. All models are the prop- 
 erty of the owner." While the parties to the con- 
 struction contract and general conditions are the 
 owner and the contractor, rather than the owner 
 and the architect, the provisions quoted are never- 
 theless indicative of a realization of the necessity 
 of a definite agreement in regard to the plans, 
 if the rights of the architect therein are to be 
 properly protected. To prevent the urging of the 
 possible argument that as between the owner and 
 the architect, unless the latter be a party to the 
 contract and general conditions, there would be 
 no consideration for the agreement of the owner 
 recognizing the property rights of the architect 
 in the plans, it is advisable that a memorandum 
 of agreement in this connection be entered into 
 direct between the architect and the owner. 
 Under such circumstances, no such technicality 
 could be urged to defeat the intent of the parties 
 as outlined in the agreement between them.
 
 PART II 
 THE OWNER AND THE CONTRACTOR
 
 CHAPTER I 
 IN GENERAL 
 
 53. Introductory. Many of the mutual 
 rights and duties of the owner and the builder, 
 especially in the matter of extras, superintend- 
 ence, certificates and the like, have been already 
 referred to. The lien rights of the contractor, of 
 the subcontractor, and of the material-man, will 
 be considered separately under "Liens" and in 
 such detail that it will not be necessary to advert 
 to them here. A brief summary of some of the 
 matters already discussed, in their relation purely 
 to the duties and rights of the owner and builder, 
 is, however, appropriate at this point, before en- 
 tering upon a detailed discussion of the construc- 
 tion contract. 
 
 54. Compensation of Builder Extras and 
 Modification of Contract. A very considerable 
 number of the differences arising between the 
 owner and contractor may be traced directly to 
 the matter of extras. It is quite natural that 
 this should be the case, inasmuch as it is in con- 
 nection with extra work, especially, that the 
 owner of ttimes feels that the expense of the work 
 is being added to needlessly or improperly and, on 
 the other hand, the contractor feels that he is be- 
 ing called upon to perform work not included or 
 
 95
 
 96 LAW OF ARCHITECTURE AND BUILDING 
 
 contemplated in the original contract and for 
 which he should receive full pay. To support the 
 right of the contractor to recover for extra work 
 and the liability of the owner to pay for same, it 
 must be shown, as the very basis of such recovery 
 and liability, that the work done was properly 
 authorized and that the authority was granted 
 and the work done under such circumstances as 
 to expressly or impliedly charge the owner with 
 such knowledge and approval and acceptance 
 thereof, as will legally render him liable to the 
 contractor for the reasonable or agreed cost of 
 the work. 
 
 If the owner himself authorize extra work 
 direct there can, of course, be no question of his 
 liability to pay for same if the price be agreed 
 upon, upon the theory of the specific contract so 
 made ; in the absence of an agreement as to price, 
 upon the theory of quantum meruit. It is prob- 
 ably more often the case, however, that it is the 
 architect who authorizes extra work and where 
 this is done there is at once added to the situa- 
 tion another element, namely, the agency of the 
 architect and his right and authority thereunder 
 to bind the owner for the additional work author- 
 ized. A somewhat detailed discussion on this 
 point has already been had. 1 
 
 The questions which arise in this connection 
 usually relate to or depend upon the terms of the 
 building contract and, in so far as this is the case, 
 
 1 Part I, Chapter II, "The Architect as Agent of the Owner," 
 pp. 12-35.
 
 IN GENERAL 97 
 
 they are considered in the next two ensuing chap- 
 ters which are devoted to that contract. It has 
 been seen that the general rule is that it is the 
 primary duty of the architect, engaged to super- 
 intend the construction of a building, to see that 
 the contract between his client and the builder is 
 carried out in strict accordance with its terms, 
 and that the architect, in the absence of special 
 authorization, is not clothed with any right or 
 authority whatsoever to change or to alter or to 
 modify the terms of that contract, or to make new 
 contracts which involve additional expense, or to 
 authorize alterations in the plans and specifica- 
 tions as already agreed to, or extra work or ma- 
 terial not specified in the original contract. 2 
 
 It has been seen, also, that although the owner 
 may, if he desire, constitute the architect his 
 general agent and, by declaring him to be broadly 
 the general agent of the owner, invest him with 
 authority to bind the owner for extras or altera- 
 tions, yet this is but an exception which proves the 
 general and well established rule that the em- 
 ployment of the architect does not, in itself, con- 
 stitute him the general agent of the client, but that 
 his agency is limited directly by the terms and 
 provisions of the understanding and agreement 
 existing between his client and himself. 3 
 
 The fact that the work done unexpectedly 
 proves to be more expensive for the contractor 
 than he anticipated, or that he meets difficulties 
 
 2 See Part I, Chapter II, Part I, Chapter II, page 
 pp. 12-25, and cases cited. 17, and cases cited.
 
 g8 LAW OF ARCHITECTURE AND BUILDING 
 
 for which he has not provided, is not, in itself, 
 any justification for an additional charge by him 
 to cover the extra expense with which he may be 
 burdened under such circumstances. If his con- 
 tract be explicitly based, in whole or to a material 
 extent, on the estimates of the engineer or archi- 
 tect of the quantity of the material which it will be 
 necessary to use or of the character of the work, 
 and the work necessary, or the quantity of ma- 
 terial necessary, prove to be in excess of the 
 amount estimated, or the work prove very ma- 
 terially different in its character from the pre- 
 liminary description given of it by the architect, 
 the contractor may reasonably claim that if he is 
 to perform the extra work made necessary by such 
 unexpected conditions and by the variances be- 
 tween the actual facts and the representations of 
 the architect, it is but proper that he be reim- 
 bursed for the additional expense which such 
 extra work will entail. This claim may be met 
 successfully by the owner if it be shown that it 
 was agreed, or specifically understood by the 
 builder, that the estimates of the architect or en- 
 gineer were merely approximate and that the con- 
 tractor was expected to investigate conditions and 
 enter into the contract, not in reliance upon any 
 representations or estimates of the architect or 
 engineer, but as a result of his own investigations 
 and judgment. 
 
 If, however, the additional cost of construction, 
 and the unexpected conditions from which it
 
 IN GENERAL 99 
 
 arises, are the result of some act or omission on 
 the part of the owner, without fault on the part 
 of the builder, the latter may recover for the extra 
 expense to which he may be put in completing the 
 contract under the altered conditions. For in- 
 stance, if the owner, by neglecting to take proper 
 care of an adjoining piece of property owned by 
 him, were to allow leakage or other conditions 
 which would undermine or deleteriously affect the 
 work being done by the contractor, and the con- 
 tractor, as a result of such conditions, should be 
 put to additional expense in completing his con- 
 tract, for shoring or additional excavation work 
 or the like, he might well maintain an action 
 against the owner for such additional expense, 
 even though in the contract itself it had been spe- 
 cifically stated that the estimates of the architect 
 and his representations, in regard to the character 
 of the work, and of the property, were approxi- 
 mate only, and that the contractor had himself in- 
 vestigated conditions and had entered into the 
 contract solely as a result of, and in reliance upon, 
 his own investigations and judgment. The mere 
 fact that the contractor had investigated condi- 
 tions and had not depended upon the architect's 
 estimates or statements would not, under such 
 circumstances, excuse the owner, for the reason 
 that the contractor, in making his investigation 
 and decision, had the right to assume and believe 
 that the owner would not, by his own neglect or 
 omission in respect to the adjoining property,
 
 ioo LAW OF ARCHITECTURE AND BUILDING 
 
 create new and unforeseen conditions involving 
 additional expense. 4 
 
 It should be remembered that there is a distinc- 
 tion between extra work agreed upon or made 
 necessary after the contract has been executed 
 and put in force, and extra work which is pro- 
 vided for under the first preliminary understand- 
 ing has been reached, but before the contract has 
 actually become effective. In the latter case, the 
 extra work would entail merely a modification of 
 the proposed contract and a change in the charac- 
 ter of the work, taking effect before the final ac- 
 ceptance of the contract. Such work should not 
 really be termed extra work at all, in the ordinary 
 sense in which that term is employed in building 
 contracts and relationships, for the reason that 
 the provisions in regard to it have become merged 
 in, and terms of, the contract, as finally agreed 
 upon. For such work no recovery can be had. 5 
 
 The builder as one of the parties to the con- 
 struction contract, is chargeable with notice of its 
 provisions, and where the contract provides that 
 no alterations are to be made except upon the 
 written order of the architect, evidence offered, in 
 behalf of the builder, that the architect has orally 
 allowed certain changes in material to be made, is 
 not competent as proof of a waiver by the client 
 of the express provisions of the contract. This 
 rule will be applied even in cases where the archi- 
 
 * Sundstrom v. The State, 8 Marx v. White Co., 143 N. 
 213 N. Y. 68, reversing 159 N. Y. Supp. 1036. 
 Y. A. D. 241.
 
 IN GENERAL 101 
 
 tect may be an officer of the corporation for which 
 he is acting as architect, and the corporation will 
 not, even under such conditions, be compelled to 
 recognize, as extra work, work done pursuant to 
 the oral permission of the architect when, under 
 the express terms of the written contract, the con- 
 tractor is chargeable with notice of the fact that 
 the authority of the architect in connection with 
 the construction work is limited to his position as 
 architect. 6 Where it appears that it is necessary 
 that extra work be done which is of such a nature 
 as to vitally affect the whole contract, and a sup- 
 plemental agreement for the doing of such addi- 
 tional work is entered into accordingly, the term 
 of the original contract will, by implication, be 
 extended by the time which is reasonably neces- 
 sary for the proper performance of the supple- 
 mental agreement and the completion of the ad- 
 ditional work thereby provided for. 7 
 
 55. The Architect's Certificate. If the con- 
 tract provide, as a condition precedent to the right 
 of the contractor to recover, that he shall receive 
 the certificate of the architect certifying to the 
 proper completion of the work, no recovery by the 
 contractor will ordinarily be allowed where he 
 fails to produce such certificate or to prove that it 
 has been issued by the architect. If, however, the 
 contractor show that the refusal of the architect 
 to issue the certificate has been unreasonable, and 
 
 Traitel Marble Co. v. T N. Y. State, etc., Bank v. 
 Brown Bros. Inc., 159 N. Y. Whitehall Water, etc., Co., 
 A. D. 485- 161 N. Y. A. D. 304.
 
 102 LAW OF ARCHITECTURE AND BUILDING 
 
 in bad faith, the general rule will not be applied 
 and the contractor will be allowed to recover upon 
 proof of these facts, and of the fact that he has 
 complied with the terms of the contract in all sub- 
 stantial particulars. 8 Similarly, an objection 
 that the certificate has not been issued will be met 
 by proof that the owner has, directly or indi- 
 rectly, waived this provision of the contract. 9 
 
 Excuse or waiver are facts which must be 
 clearly proven, however, to be effective, and if 
 the contract provide that the production of the 
 architect's certificate is to be a condition precedent 
 to recovery by the contractor, no recovery will be 
 allowed where the complaint fails to allege the 
 issuance of the certificate, or an excuse for its 
 non-production, or a waiver of its production, 10 
 and this notwithstanding the fact that there may 
 be evidence that the architect was at the building 
 but seldom, and that prior payments had been 
 made to the contractor during the course of the 
 work without the production by him of the certifi- 
 cates of the architect. 11 
 
 Where, however, upon the contractor failing to 
 complete, the owner completes the work, the fact 
 
 8 MacKnight, etc., Co. v. The 9 Diehl v. Schmalacker, 26 
 
 Mayor, 160 N. Y. 72; Thomas Misc. (N. Y.) 835; Fay v. 
 
 v. Stewart, 132 N. Y. 580; Muhlker, i Misc. (N. Y.) 321 ; 
 
 Flaherty v. Miner, 123 N. Y. Uvalde, etc., Paving Co. v. 
 
 382; Bowery National Bank v. Central, etc., Co., 84 N. J. L. 
 
 The Mayor, 63 N. Y. 336 ; Peo- 297 ; Schmulbach v. Caldwell et 
 
 pie ex rel. Rapid Transit, al., 215 Fed. Rep. 70. 
 
 etc., Co. v. Craven, 210 N. 10 Weeks v. O'Brien, 141 N. 
 
 Y. 443; Thomas v. Fleury, 26 Y. 109. 
 
 N. Y. 26. 11 Shurman v. George Back- 
 er, etc., 144 N. Y. Supp. 9.
 
 IN GENERAL 103 
 
 that the contract contains a provision that pay- 
 ments shall be made only upon the certificate of 
 the architect will not prevent the contractor, 
 under such circumstances, from recovering on 
 quantum meruit the difference, if any, which 
 there may be between the contract price and the 
 cost of completion. Under such circumstances, 
 the production of the architect's certificate is 
 neither necessary nor material to support the re- 
 covery. 12 
 
 In further limitation of the ordinary rule re- 
 quiring that the certificate of the architect must be 
 secured, it should be noted, that in the event that 
 the refusal or failure of the architect or engineer 
 to give such certificate is a result of an error of 
 law on his part in construing the terms of the con- 
 tract, the contractor is not barred by his inability 
 to produce the certificate and may recover for the 
 work which he has done, if the same has been in 
 other respects satisfactory and in accordance with 
 the terms of the contract. 13 
 
 Just as the refusal to give the certificate may 
 not be necessarily fatal to the recovery of the con- 
 tractor, so the fact that a final certificate has been 
 given is not invariably conclusive evidence of the 
 amount due from owner to contractor. In the 
 event, for instance, that there has been a guar- 
 antee by the contractor that the completed struc- 
 ture will have a certain capacity or effectiveness 
 in the use to which it is to be put, and it prove that 
 
 12 Borup v. Von Kokeritz, 13 Merrill-Ruckgaber Co. v. 
 162 N. Y. A. D. 394. New York, 160 N. Y. A. D. 513.
 
 104 LAW OF ARCHITECTURE AND BUILDING 
 
 it is deficient in such respects, the owner, in a suit 
 by the contractor for the unpaid balance of the 
 contract, may properly counterclaim for a breach 
 of such warranty. Evidence of such breach is 
 admissible under these circumstances for the rea- 
 son that such a warranty survives the completion 
 and acceptance of the contract, and the mere fact 
 that the contract has been completed in accord- 
 ance with its terms, and the building erected in 
 accordance with the plans agreed upon, is no 
 answer to a claim that in addition to this contract 
 there was a warranty that the building, when 
 completed in accordance with the plans and con- 
 tract, should be available and efficient for the 
 purposes intended, and that it is deficient in these 
 particulars. 
 
 The combination of a provision for arbitration 
 with a provision for the giving of certificates by 
 the architect or engineer, may operate to relieve 
 the contractor somewhat of the strict require- 
 ments of the ordinary certificate provision. So, 
 if it be provided both that claims of the contractor 
 shall be approved and passed by the engineer or 
 architect, and that, in the event that the same are 
 not so passed, they shall be determined by arbi- 
 tration, the contractor, upon the failure of the ar- 
 chitect to issue the certificate, will still have open 
 to him the right to have his claim determined by 
 arbitration. At the same time, in a contract so 
 phrased, the contractor may not invoke the rule 
 that a recovery may be enforced where the refusal 
 to certify is improper, without first referring the
 
 IN GENERAL 105 
 
 matters in dispute to arbitration in accordance 
 with the arbitration provisions of the contract. 14 
 
 The courts are inclined to give more than ordi- 
 nary weight to the opinions and testimony of ar- 
 chitects regarding the character and conditions 
 of the work, not only on account of their special 
 professional knowledge on these points, but on 
 account also of the somewhat quasi- judicial posi- 
 tion which they occupy in superintending the per- 
 formance of a construction contract. Where, 
 for example, the contractor sues in quantum 
 meruit, and testifies that the owner has prevented 
 performance of the contract by failing to pay 
 an installment due under the contract and has 
 based his refusal solely on the ground that the 
 superintendent of the works has failed to recom- 
 mend payment, such refusal in itself not giving 
 to the owner, under the contract, the right to 
 refuse payment, and the architect denies the 
 contractor's contention and testifies that the only 
 reason the certificate has not been given is that 
 the work is defective, the evidence is insufficient 
 to show that the owner prevented performance. 15 
 
 Provisions relative to the certificate of the ar- 
 chitect are not enforced solely for the benefit of 
 the owner, but may be enforced for the protection 
 of the contractor as well. If, for instance, the 
 contract provide that upon the architect certify- 
 ing to the default of the contractor, the owner 
 
 14 People ex rel. Rapid 15 Borup v. Von Kokeritz, 
 Transit Co. v. Craven, 210 N. 162 N. Y. A. D. 394. 
 Y. 443-
 
 io6 LAW OF ARCHITECTURE AND BUILDING 
 
 may terminate the contract and complete the 
 work, and that he may, for this purpose, take 
 possession of the tools and materials on the 
 premises, the giving of the architect's certificate 
 is, under such circumstances, a condition prece- 
 dent to the right of the owner to take possession of 
 the tools and materials and he will not be allowed 
 to assert any right of possession to them until the 
 certificate is given. 
 
 Speaking generally, it is in actions by the 
 builder against the owner, to recover the contract 
 price, that the questions involving the acceptance 
 of the work and the issuance of certificates by the 
 architect arise. An examination of the decisions 
 in such actions will indicate what important fac- 
 tors these questions have proved to be in the cases 
 wherein they have been present, and how gen- 
 erally and in how many different jurisdictions 
 they have arisen. 16 
 
 16 Heidlinger v. Onward Hooker, 2 Cal. App. 36, 83 
 
 Const. Co., 44 Misc. (N. Y.) Pac. 79. Fitzgerald v. Ben- 
 
 555, 90 N. Y. Supp. (124 N. Y. ner, 219 111. 485, 76 N. E. 709; 
 
 St. Rep.) 115; Olsen v. Barbee v. Findlay, 221 111. 251, 
 
 Schwarzwelder, 109 N. Y. App. 77 N. E. 590; Andrew Lohr 
 
 Div. 282, 95 N. Y. Supp. 651 ; 'Bottling Co. v. Ferguson, 223 
 
 Traitel v. Oussani, 51 Misc. (N. 111. 88, 79 N. E, 35. Louisville 
 
 Y.) 667, 135 N. Y. St. Rep. (101 Foundry Co. v. Patterson (Ky. 
 
 N. Y. Supp.), 105, White v. Ct. of App. May 9th, 1906) 93 
 
 Abbott, 188 Mass. 99, 74 N. E. S. W. 22. Dogue v. Levy, 114 
 
 305; Hebert v. Dewey, 191 La. 21, 37 So. 095; Filston 
 
 Mass. 403, 77 N. E. 822; Farm Co. v. Henderson (Md. 
 
 Loftus v. Jorjorian, 194 Mass. Ct. of App. June 27, 1907), 67 
 
 165, 80 N. E. 235. Bush v. Atl. 228. Carnegie Public 
 
 Jones (C. C. A.), 144 Fed. Lib. Assoc. v. Harris (Tex. 
 
 942; Stephens v. Essex County Civ. App. May 9th, 1906), 97 
 
 Park Commission (C. C. A.), S. W. 520. Lavanway v. Can- 
 
 143 Fed. 844. Wyman v. non, 37 Wash. 593, 79 Pac.
 
 IN GENERAL 107 
 
 56. Damages. The contractor is in duty 
 bound to see that the work performed by him for 
 the owner is performed in a proper and workman- 
 like manner, and if this is not the case and reason- 
 able care is not employed and damage to the owner 
 results, the latter may look directly to the con- 
 tractor for compensation. 17 
 
 While the relationship of owner and contractor 
 is not characterized by the elements of special 
 trust and confidence to the same extent as is the 
 relationship of owner and architect, and while the 
 duties of the contractor to the owner, and of the 
 owner to the contractor, are limited and pre- 
 scribed almost entirely by the more strictly legal 
 obligations of the one to the other, as set forth in 
 the contract between them, and without those 
 other and implied elements of special obligation 
 and trust which characterize a professional, as 
 distinguished from a business, relationship, never- 
 theless, the owner and the contractor must deal 
 with one another in absolute and entire good faith. 
 If the owner depart from his duties in this re- 
 spect and conspire against the contractor, either 
 
 1117. Halsey v. Waukesha Newman v. Fowler, 37 N. J. L. 
 
 Springs Sanitarium Co., 125 89; compare also Cass County 
 
 Wis. 311, 104 N. W. 94; Mod- v. Gibson, 107 Fed. 363, to ef- 
 
 ern Steel Structure Co. v. feet that an offer by the builder 
 
 English Const. Co., 129 Wis. in good faith to correct defects 
 
 31, 108 N. W. 70. Robins v. will entitle him to recover. 
 
 Goddard (1905), i K. B. 294. As to what acceptance will 
 
 17 Mohawk, etc., Co. v. constitute a waiver, see Smith 
 
 Brown, 163 N. Y. A. D. 157; v. Brady, 17 N. Y. 173; Estep 
 
 David v. McDonald, 8 L. C. et al v. Fenton et al, 66 111. 
 
 (Lower Canada) Jurist, 44; 467; Korf v. Lull, 70 111. 420. 
 14 L. C. Rep. 31; and see
 
 io8 LAW OF ARCHITECTURE AND BUILDING 
 
 with the architect or others, he is liable to the con- 
 tractor for any damages occasioned the latter as 
 a result of his conduct. On the other hand, if 
 it appear that the contractor has been guilty of 
 any improper conduct toward, or willful depart- 
 ure from his obligations to, the owner, the latter 
 may recover for the damage caused him by such 
 wrongful acts of the contractor. 
 
 It is a well recognized and long established 
 principle that a contract induced by fraud is void- 
 able at the option of the party defrauded. 18 If, 
 therefore, some concession or agreement be made 
 either by the owner or by the contractor as a re- 
 sult of bad faith or of misrepresentation on the 
 part of the other, the transaction may be deemed 
 a nullity by the innocent party. Thus, if the ar- 
 chitect waive the requirements of a written con- 
 struction contract, with the authority and consent 
 of the owner, such waiver will, nevertheless, not 
 be binding on the owner, if the action taken by the 
 architect and the acquiescence therein of the 
 owner be the result of bad faith on the part of 
 the contractor. 19 
 
 The owner has the right to insist that the work- 
 manship of the contractor be of good character 
 and performed with reasonable skill and care, and 
 if the workmanship be not of such character, but 
 
 18 Morrison v. Universal, etc., v. Hatfield, 46 N. Y. 533 ; 
 
 Co., L. R. 8 Exch. Cases 197; Baird v. New York, 96 N. Y. 
 
 Rowley v. Bigelow, 12 Pick. 567. 
 
 (Mass.) 307; Byard v. 19 Mohawk Overall Co. v. 
 
 Holmes, 33 N. J. L. 119; Daly Brown et al., 163 N. Y. A. D. 
 
 v. Wise, 132 N. Y. 306; Cobb 157.
 
 IN GENERAL 109 
 
 be such as to justify the conclusion that the con- 
 tractor has been guilty of bad faith and reckless- 
 ness and improper methods of construction in the 
 carrying out of his contract, the owner may col- 
 lect from the contractor, as damages, the amount 
 which it may cost him to effect proper repairs, and 
 to correct the faults of construction resulting 
 from the acts or omissions of the contractor. 
 This will be true even if it be shown that the 
 owner authorized the architect to waive the re- 
 quirements of the written contract, and consented 
 to a different form of construction from that 
 originally specified. No matter what the form of 
 construction may be the owner has a right to ex- 
 pect that the contractor will perform his work in 
 accordance with the form of construction speci- 
 fied, and in a proper and reasonably careful man- 
 ner. 20 
 
 57. Right to Plans. It has been already 
 noted that the owner, in the absence of a special 
 agreement between him and the architect, is en- 
 titled to the plans which he has ordered and for 
 which he has paid or became obligated to pay. 
 While there is no element of ownership in the 
 rights of the builder in the plans, nevertheless, 
 the fact has been recognized that he has a certain 
 right to use and to hold them in his possession 
 during the progress of the work. The specific 
 case in which this right has been referred to, 
 however, involved the right of the builder to the 
 plans as between himself and the architect and a 
 
 20 Mohawk Co. v. Brown et al., 163 N. Y. A. D. 157.
 
 i io LAW OF ARCHITECTURE AND BUILDING 
 
 question of criminal conduct and bad faith on the 
 part of the latter. 21 It should not be considered, 
 therefore, as at all conclusive in an ordinary case, 
 even as between architect and contractor. All 
 that can be said in regard to this right as between 
 the owner and the builder is that there might, con- 
 ceivably, be certain circumstances under which 
 the taking of the plans by the owner from the 
 builder would be improper, and certain rights 
 to which the court, under special conditions, 
 would probably hold the builder to be entitled, 
 such as the right to hold the plans as a part and as 
 evidence of the contract between himself and the 
 owner or for purposes of proof of his own proper 
 compliance with the terms of the contract between 
 them. 
 
 58. Liability of Contractor for Work of Sub- 
 contractor. A contractor is bound to make good 
 any defects in the work which are the result of 
 improper work by his subcontractor. Under such 
 conditions he will naturally desire to secure reim- 
 bursement from the subcontractor if possible. 
 
 59. Recoupment from Subcontractor. An 
 agreement by a subcontractor to perform work 
 under the supervision of an architect, and in ac- 
 cordance with the latter's plans, will be sufficient 
 to sustain a recovery by the general contractor 
 from the subcontractor of any amounts which the 
 former has been compelled to pay by reason of the 
 architect's requiring him to replace work per- 
 formed by the subcontractor, because the same 
 
 21 Lonford v. Diettrich, 87 Ala. 250.
 
 IN GENERAL in 
 
 * 
 
 was defective and not in accordance with the 
 plans. The subcontractor, however, cannot be 
 held to account for provisions in the specifications 
 which refer merely to the amount to be paid to 
 the contractor by the owner, and if he prove that 
 he has performed the work which he has agreed 
 to perform, in accordance with the plans and 
 specifications, his right to recover will be sus- 
 tained. 22 
 
 60. Time of Payment. In some instances it 
 may be that the contract specifies no fixed time for 
 payment, as distinguished from the usual contract 
 provisions whereby installment payments at 
 designated times or stages of the work are pro- 
 vided for. Where no fixed time for payment is 
 provided, the contractor is not entitled to payment 
 for the work until the performance thereof has 
 been completed. 
 
 61. Substantial Performance. The doctrine 
 of substantial performance will be again referred 
 to in another connection 23 and the rules, which 
 will be seen to characterize that doctrine, when 
 applied to a proceeding by the builder to foreclose 
 his lien, may, in general, be said to characterize it 
 also when applied to a suit by the builder to re- 
 cover the amount which he may claim to be due 
 to him under the building contract. 
 
 While the doctrine of substantial performance 
 was developed to do away with the injustice which 
 an insistence on an absolutely literal and strict 
 
 22 Martin v. Oberle, 85 N. 2S Part III, Liens, p. 163. 
 Y. Misc. 35.
 
 112 LAW OF ARCHITECTURE AND BUILDING 
 
 
 
 performance of the contract would often work 
 the contractor must, nevertheless, comply with 
 each and every one of the substantially important 
 and necessary elements and provisions of the con- 
 tract. If he agree to perform certain work ac- 
 cording to law, he can not recover for the work 
 even though he has performed it, if it appear that 
 he has not complied with certain material provi- 
 sions of the law. For the purposes of this rule, 
 a contractor who has failed to comply with the 
 Rules of the Tenement House Department is con- 
 sidered to have failed to comply with the provi- 
 sions of the law. 24 
 
 Just what constitutes, in a given case, substan- 
 tial performance, will depend upon all the condi- 
 tions surrounding the work and the terms of the 
 contract in that specific case. What might, for 
 instance, under certain conditions, be sufficient to 
 sustain a conclusion that the contract has been 
 substantially performed, might, under other con- 
 ditions, be totally inadequate for that purpose. 
 
 In a rather recent case a contractor agreed to 
 excavate a cellar 162 feet in length, 102 feet in 
 width, and 8 feet in depth. The cellar which he 
 excavated measured 161 feet in length by 99 feet 
 8 inches in width and 8 feet in depth. It was held 
 that he had not substantially performed his con- 
 tract and that he could not recover the balance 
 unpaid thereon and for which he sued. 25 
 
 24 Bonagur v. Purificato, 146 25 Paladino Contracting Co. 
 N. Y. Supp. 1070. v. Walsh et al., 144 N. Y. 
 
 Supp. 7.
 
 CHAPTER II 
 
 REQUISITES OF CONSTRUCTION 
 CONTRACT 
 
 62. In General. There is naturally nothing 
 of more importance as affecting the mutual 
 rights and liabilities of the owner, the builder, 
 and, to a certain extent, the architect, than the 
 construction contract, in that it is to the contract 
 that the courts will look primarily in determining 
 and interpreting the special rights and liabilities 
 of the parties. 1 
 
 While in the absence of a specific statute it is 
 not necessary that the contract, if it is to be per- 
 formed within a year, shall be in writing, 2 yet the 
 custom of reducing the terms of the understand- 
 ing to written form has now become so well-nigh 
 universal, and the desirability of a contract in 
 definite written form is so apparent, that in refer- 
 ring to the contract hereafter it may be assumed, 
 unless it is otherwise definitely indicated, that 
 where the word contract is used a written con- 
 tract is referred to. 
 
 It is one of the prime requisites of any contract 
 that a valid consideration be present, and the 
 
 1 0'Keefe v. St. Francis's 2 Champlain Construction Co. 
 Church, 59 Conn. 551. v. O'Brien, 117 Federal 271. 
 
 "3
 
 ii4 LAW OF ARCHITECTURE AND BUILDING 
 
 building contract is no exception to the rule. 3 It 
 is essential also that there be present in the con- 
 tract the element of mutuality the obligation 
 upon the builder to do the work and upon the em- 
 ployer to make payment for the work that is 
 done ; 4 a mere memorandum of prices signed by 
 the parties cannot be held to be a binding contract, 
 in the absence of an undertaking by the parties to 
 perform the agreement. 5 To these more funda- 
 mental requisites of a valid contract must be 
 added the element that the building contract must 
 be so phrased as to allow the intent of the parties 
 to be deduced therefrom with a reasonable degree 
 of certainty. In a comparatively recent case 6 be- 
 fore the Federal Supreme Court, it appeared that 
 there was a variance between the provisions of 
 the contract and the specifications, and the court, 
 in its opinion by Chief Justice White, referring 
 to the irreconcilable provisions of the contract and 
 specifications, said: 
 
 "it is evident that there was a conflict so irreconcilable 
 between the essential provisions of the assumed contract 
 as to render it impossible to enforce it as an agreement 
 between the parties . . . under the circumstances, there- 
 fore, the court erred in treating the contract as a valid 
 agreement." 
 
 Analogous to the foregoing rule is the rule that 
 where the specifications, in exact accordance with 
 which it is covenanted the building must be 
 
 8 Majory v. Shubert, 82 York, 49 Misc. (N. Y.) 114. 
 <N. Y.) A. D. 633. B Greve v. Ganer, 36 Wis- 
 
 *Durkin v. City of New consin 369.
 
 REQUISITES OF CONSTRUCTION CONTRACT 115 
 
 erected, are so indefinite and so erroneously 
 drawn as to make impossible any proper interpre- 
 tation of them, or the erection pursuant to them, 
 of a building of any known dimensions, the con- 
 tract will not be enforced. 7 
 
 Other elements of the valid contract which 
 should be specially noted are : That the contract 
 must not contemplate a building in its very charac- 
 ter capable of being used for an illegal purpose, 8 
 and that it must, also, be so drawn as to comply 
 with the provisions of the building codes and 
 regulations in force where the building is to be 
 erected. 9 
 
 It is not necessary that the construction con- 
 tract, any more than an ordinary contract, be con- 
 tained in one instrument solely, and other condi- 
 tions or provisions may be incorporated in the 
 contract as a part thereof by proper reference to 
 them in the main instrument. 10 Thus the pro- 
 vision contained in Article 4 of the new standard 
 form of agreement issued by the American Insti- 
 
 6 United States v. Ellicott, its terms, the owner may not 
 223 U. S. 524. defend on the ground that ad- 
 
 7 Lyle v. Jackson Co., 23 ditional expense will be re- 
 Arkansas 63, and see Turney quired to make the work con- 
 v. Bridgeport, 55 Conn. 412. form with the building reg- 
 
 8 Spurgeon v. MacElwain, 6 ulations ; and see Girard Life 
 Ohio 442. Insurance Co. v. Cooper, 162 
 
 9 Burger v. Koelsch, 77 Hun. U. S. 529; Disken v. Herger, 
 (N. Y.) 44; Eastern, etc., 73 N. Y., A. D. 453. 
 
 Metal Co. v. Webb Granite, 10 Francis v. Heine, etc., Co., 
 
 etc., Co., 195 Mass. 356; but 105 Federal 413, reversed, but 
 
 see Morse v. Maurer, 35 Pa. on other grounds, 109 Federal 
 
 Super. Ct. 196, holding that 838; Howard v. Pensacola, 
 
 where the contract has been etc., Co., 24 Florida 560. 
 performed in accordance with
 
 n6 LAW OF ARCHITECTURE AND BUILDING 
 
 tute of Architects and approved by the National 
 Association of Builders' Exchanges and other 
 associations, providing that the drawings and 
 specifications are made a part of the contract, is 
 good; and when they are so incorporated in the 
 contract, they become at once, by virtue of such 
 incorporation therein, elements of direct import- 
 ance in determining the rights of the various 
 parties. 11 The mere fact that the plans and speci- 
 fications are not attached to the contract, al- 
 though it is agreed that they shall be, has been 
 held immaterial where the contract itself is suffi- 
 ciently definite to determine the rights of the 
 parties. 12 
 
 While there would seem to be no damage occa- 
 sioned either party by not attaching the plans and 
 specifications as agreed where the contract is ab- 
 solutely definite and clear without them, neverthe- 
 less, where the provision that they shall be at- 
 tached is made a definite term of the contract, and 
 is clearly inserted for the purpose of protecting 
 the parties, by making definite and clear every 
 term of their agreement, it is unsafe to attempt to 
 extend the rule as stated so as to include such a 
 case, or to take liberties with the contract by not 
 attaching the plans and specifications, when it has 
 been specifically covenanted as a term of the con- 
 tract that they shall be attached. 
 
 11 Wilemet Steam, etc., Co. Moore, 170 Ind. 328 ; but see 
 
 v. Los Angeles College Co., 94 Hayes v. Wagner, 113 Illinois 
 
 Cal. 239; Howard v. Pensacola, Appeals 299. 
 
 etc., Co., supra., 24 Fla. 560 ; 12 Womble v. Hickson, 91 
 
 Cleveland, etc., Railroad Co. v. Arkansas 266.
 
 REQUISITES OF CONSTRUCTION CONTRACT 117 
 
 63. Importance of Statutory Provisions. 
 The provisions in the various States in regard to 
 construction and other contracts differ, as is natu- 
 ral, in many respects, and, as in the case of a lien, 
 the only really safe course to pursue in any given 
 case is to become thoroughly acquainted with the 
 special provisions of the statute in the jurisdiction 
 in which the case arises. In California, it has 
 been held 13 that the contract cannot support 
 an action for damages for its breach unless it is 
 recorded, and that where an ordinance specifies 
 that a permit must be obtained, a contract to con- 
 struct without a permit is not lawful and will not 
 be allowed to form the basis of a civil action. 14 
 In Connecticut an agreement to build from 
 plans and specifications not submitted to and ap- 
 proved by the officers by whom the statute re- 
 quired they should be approved, has been held to 
 be void. 15 While the foregoing are instances of 
 special State statutes they should be noted, es- 
 pecially, as excellent examples of the rule that 
 prudence requires that in the making and in the 
 performance of the contract, all the parties should 
 give proper heed to such ordinances and statutes 
 as may apply, even if it be considered that their 
 application is not necessarily clear or of any con- 
 siderable importance. 
 
 64. Void and Illegal Contracts. In this same 
 connection a distinction should be noted between 
 
 13 Condon v. Donohue, 160 1S Wilcox Manufacturing Co. 
 Cal. 749. v. Brazos, 74 Conn, 208. 
 
 14 Smith v. Luning, in Cal. 
 308.
 
 ii8 LAW OF ARCHITECTURE AND BUILDING 
 
 a contract which is wholly void, because it is not 
 properly consummated, or because it contemplates 
 the doing of an illegal act, and a contract which in 
 itself is perfectly lawful, but is not performed in 
 a lawful manner. The latter contract will not be 
 declared illegal as a whole so as to prevent a re- 
 covery under it. 16 The mere carrying out of a 
 contract in an illegal way does not make the con- 
 tract itself illegal, 17 and even where the contract 
 contains certain provisions which are not in ac- 
 cordance with statute or ordinance, it seems that 
 its validity may possibly in some cases, and espe- 
 cially where nothing illegal was intended, be sus- 
 tained. 18 The requirement that the contract shall 
 not usurp the jurisdiction of the courts is referred 
 to elsewhere. 19 
 
 16 Fox v. Rogers, 171 Mass. 18 Favor v. Philbrick, 7 New 
 546. Hampshire 326; Waugh v. 
 
 17 Barry v. Cape, 151 Mass. Morris, L. R., 8 Q. B. 202. 
 99. 1S> 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 
 
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 UNIVERSITY OF CALIFORNIA LIBRARY 
 
 Los Angeles 
 
 This book is DUE on the last date stamped below. 
 
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 FEB 4 1980 
 
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