CHAPTER VIII. ARCHITECTS EMPLOYED ON COMMISSION. HERE an architect is employed in the more usual way, for a fixed price or commission, the rule for calculating the damages to which he is entitled, if deprived of his employment without cause, is simpler. Like persons employed at fixed wages, he is entitled, in such a case, to treat the contract as rescinded by both parties, and sue, on quantum meruit, for the fair value of the labor which he has already expended; or he may consider the contract as broken by the other party, and, if his offers to go on and complete his part of it are rejected, may sue for damages for the breach of it; and the damages will usually be reckoned by the court at the full contract price or commission, less what he would have had to lay out for materials and draughtsmen's services; or, in other words, the profit that he would have made out of the transaction. Naturally, such cases in which architects are concerned are not very common, and there appear to be none mentioned in the American courts of record. A suit, in which Messrs. Fuller & Wheeler, of Albany, were plaintiffs, was, however, decided by a referee in exactly this way, and the rule seems to be general in regard to contracts for other sorts of personal service. A lawyer was engaged to defend certain suits at an agreed price, and was discharged from his employment without cause before the suits were concluded. He had fully performed Damages Full Commission, Less Expenses. Webb vs. Trescony, 76 Cal. 621. What is Included in the Architect's Service. Dull vs. Bramhall, 43 Ill. 364. his agreement until the time of his discharge. In his suit for damages for the breach of the contract of employment, the Supreme Court of California ruled that the measure of damages was the full amount agreed to be paid. There is occasionally a doubt as to what is included in the service which the architect is to render, the architect thinking that he ought to have extra pay for certain work which he has done at the owner's request or suggestion, and the owner thinking otherwise. In most cases this would be a question for the jury, who would have to decide from the evidence what the contract of employment really comprised; but the decision occasionally turns upon a point of law or custom, which must be decided by the court. When the tunnel for supplying the city of Chicago with water was built out into Lake Michigan, the contractors for the work, Messrs. Dull & Gowan, employed a Pennsylvania carpenter, named Bramhall, to superintend the construction of the crib, which was afterwards to be taken out into the lake and sunk at the end of the tunnel. At the conclusion of operations in the autumn Bramhall went to work in a reaper-factory, and Dull & Gowan asked him to devise some plan for launching the crib the following season, and for sinking the two iron cylinders which were to be placed at the lake end of the tunnel. No plans for doing this part of the work had been provided by the city, but several schemes were prepared by different parties, and submitted to the contractors and the city engineer. Bramhall made his plans in the evenings, after his work in the reaper-factory was over, and they were adopted. When he heard that they had been adopted, he made in his book a charge of $500 apiece for them. In the spring, Bramhall was persuaded to leave his place in the reaper-factory and superintend the launching of the crib and the sinking of the cylinders; and he also, at the request of the contractors, devised in his evenings a scheme for anchoring the crib in position. He remarked to Gowan that he had made a charge for his plans, and both Dull and Gowan told him that he should be paid "well or "something" for them. After the work had been successfully accomplished in accordance with his scheme, he agreed with the contractors to take $200 as payment for his plans, and Gowan promised to pay it, but failed to do so. Bramhall then sued for compensation, and Dull & Gowan resisted the claim, on the ground that the making of the plans was included in the services which Bramhall was to render under his agreement for superintendence. The jury in the court below gave Bramhall a verdict for $650, and the Supreme Court sustained the verdict, saying that Bramhall "worthily earned the "pittance the jury gave him," and that "there was no doubt "that it was extra work." A decision is sometimes quoted to show who is the person regarded by the law as the proper one to pay for the plans of a building. An architect named Webb was requested by one Harper to make a design for a portico. Harper contracted with School, a carpenter, to build the portico according to the design of Webb, and in accordance with his working drawings. When the portico was finished, Webb asked Harper for compensation for the working drawings, as well as for the design; but Harper paid him for the design, and refused to pay anything more, saying that the working drawings formed no part of the contract between them. Webb then sued for payment for them from the contractor, on the ground that, if Harper was not bound to pay for them, School, who used them, was. The report goes on to say: "But the defendant (School) was not shown to have made any prior request or subsequent promise, and the presumption, which might have arisen from the use of the drawings in the execution of the work, was rebutted by proof that the architect usually furnishes the means of carrying his plans into execution by designing the details as well as the general outline, and that the obligation of paying for the whole ordinarily rests on the employer." Where the architect's compensation is to be reckoned by a percentage on the cost, an attempt is sometimes made to cheat him out of his pay by concealing or falsely stating to him the Drawings not Included in Superin tendence. Plans Paid for by Owner. Webb vs. 3 Phila. 125. Owner must State Cost of Building for Computing Commission. Lambert vs. 55 Conn. 437. "Estimated Cost" Means Reasonable Cost. cost of the building. Courts, however, will not suffer such Sanford then claimed that the estimate intended by his contract with Lambert must be agreed to by both parties; that the bids were not estimates, and had not been accepted, and that no estimate had therefore been made, and there was nothing to show that the two and one-half per cent was due, or when it was to become due. The Supreme Court held that "estimated cost" meant reasonable cost; not necessarily the amount of some actual estimate made by a builder, nor an estimate agreed to by the parties, nor one accepted by the owner; and that the court below had properly decided the case, on suitable evidence as to the cost. Where no stipulation has been made beforehand as to the definite sum or percentage which shall be paid for the architect's services, it is usually supposed by architects that they are entitled to collect compensation according to the schedule of the American Institute of Architects, or that there will, in general, be no difficulty in obtaining a verdict for the five per cent on the cost which is accepted by architects in all civilized countries, and by the public in most, as the proper and reasonable compensation for the architect's services upon such buildings as those which generally come under his charge. It is true that the higher courts do not often quarrel with the amount of the fees which the architect claims under the schedule, but they often object to the introduction of the schedule itself, or to any evidence in relation to the custom of regulating the charges of architects by any sort of percentage. One English judge is said to have refused to hear evidence as to the five per cent rule, on the ground that a custom, to be of any authority in law, must be a reasonable one, and this was not a reasonable one. A more sensible objection is that a custom, to be binding between two parties, ought to be known to both parties, and the public generally knows little of the rules which bodies of architects establish among themselves; but an obstacle of the same sort does not seem to prevent real estate brokers from collecting their regular commissions without difficulty, and the legal mind appears, as is shown by the remarks sometimes made in court on the subject, to be unfavorably impressed by a custom which, as the lawyers assert, makes it for the interest of the architect to have his employer's building cost as much as possible. Probably this circumstance never enters the head of most architects; but lawyers are not remarkable for looking on the bright side of human nature. The consequence is that architects who are compelled to collect their pay at law should be cautious about having the schedule, or any custom or usage of charging by percentage, The Five Per Cent Rule. Schedule Fees Re asonable in Amount. Inslee vs. Jones, Bright, 76. (Pa.) Schedule, as Evidence of Custom, not Favored in Courts. |