Knight vs. 13 Minn. 473. 1. That the architect was entitled to a mechanic's lien under the statute; one judge dissenting. 2. That the suspension of the work was not due to the fault of the architect; that his plans and specifications were all done, and he had computed his claim only with reference to the cost of the building to the time of suspension of operations, exclusive of what remained to be done on it; and that suspension, without fault on his part, should not deprive him of his lien. 3. That evidence showed that Knight "came along three "times a day most every day," and "stayed ten or fifteen "minutes when he came, usually a quarter of an hour or less," and that McCargar told the carpenter to go to Mr. Knight if he wanted any information, and that this "had a considerable "tendency to establish the charge for superintending." 4. That, "from the character of the labor (plans, specifica"tions and superintending of building), it could not be expected "that it would be itemized so as to give the hours and fractions "of hours during which the services were being performed. "This was in reality but one item. The charge, as made, "would seem to be customary and reasonable in the gross. "We think the account sufficiently specific." It will be observed that the Minnesota Supreme Court thinks that a charge of five per cent on the estimated cost of a block, where no agreement has been made as to the architect's compensation, is "customary and reasonable"; and this decision may be taken as establishing the law that the five per cent clause of the Institute schedule, at least, will be admitted in Minnesota as legal and customary. It will be observed that the architect's bill was calculated on the cost of the block up to the time when work on it was stopped, and it may seem strange that a claim was not made for the full five per cent commission on the estimated cost of the completed work, to which the architect appears to have been fairly entitled, under the rule that if a person is ready and willing to complete the work for which he is engaged, and is prevented from doing so, without his fault, by the other party to the agree ment, he is entitled to recover the full contract price, less his probable outlay for completing it, which, in this case, would be nothing, as the plans and drawings were done, and he would have had nothing but a few more personal visits of superintendence to make. The explanation appears to be that, under the statute, a mechanic's lien could be enforced only for work actually done, not for damages or future profits. Cases will be mentioned below in which the liens of builders have been declared invalid, and their remedy lost, on account of their having entered claims for a larger amount than that actually due; and Mr. Knight's counsel seems to have been careful enough to see that his client did not endanger his suit by making his claim too extensive. In Missouri, Kentucky and Maine an architect is not entitled to a lien, even if he superintends the building. The Missouri Court of Appeals says that "It seems clear enough that "an architect is not a mechanic, . . . and that he cannot be said "to perform any work or labor on a building when he draws "or designs the plans according to which it is constructed." In Maine, it has been held that "The statute plainly does "not include men of the learned professions." In this case the architect superintended the building, as he did also in the Kentucky case in which he was held not to be entitled to a lien. In New York, a decision has been given denying the right of the architect to a lien, which seems to be in direct contradiction to the decision of the Court of Appeals in Stryker vs. Cassidy; but, as the statute of New York in regard to mechanics' liens has been greatly modified since these decisions were given, it is impossible to say what might be the opinion of the judges in another case. In fact, as the statutes regulating liens are constantly being modified in the different States, and the words describing the persons who shall be entitled to liens are quite liable to be changed, a decision under the statute is of value as a precedent only so long as the statute remains unaltered; and architects should use great caution in availing themselves of such enactments. Limit of Claim in Mechanic's Lien. Raeder vs. 6 Mo. App. 445. Ames vs. Dyer, 41 Me. 397. Foushee rs. Grigsby, 12 Bush. 76. Ericsson vs. Brown, 38 Barb. 391. Architect's Contract a Personal One. Stubbs vs. Holywell R'y Company, 36 L. J. Ex. 166. Architect's Contract Entire. Partial Compensation Kecoverable in Case of Death. Dryer vs. 57 Ala. 550. Ryan vs. 25 Conn. 188. CHAPTER IX. THE SICKNESS OR DEATH OF THE ARCHITECT. THE 'HE architect's contract with the owner for professional services is, unless some express stipulation is made to the contrary, a personal one; that is, the performance of it involves the personal skill and judgment of the architect himself, and cannot be undertaken for him by an assignee, in case of his bankruptcy, or by his executors or administrators in case of his death, or assigned by him to any one else, without the owner's consent. As the rule of law is that, in case of an entire contract, for a certain amount of goods or services, at a fixed price, no part of the price is due, unless the whole of the goods are delivered, or the entire service rendered, and as the architect's contract with the owner is held to be an entire one, his family, in case of his death or disability, would be unable to collect any compensation for what he had done on unfinished buildings, were it not for a special exception, which is made by statute in some States, and by the common law, at present, in all, under which, "where full performance of contract for personal ser"vices is prevented by the death of the servant during the "term of service, the personal representative is entitled to re 66 cover rateable compensation for services actually rendered." This is the language of an Alabama decision; and the Supreme Court of Connecticut says, to the same effect, "Where the "service is personal, and cannot be performed by the agency "of any other person, there is an implied condition in the con"tract of service that the party hired is not deprived, by "inability to labor during a part of the stipulated time, of the "right to a reasonable compensation for the services actually "performed." 66 The Court of Appeals of New York states the law even more clearly. "Where," it says, a contract contemplates the "personal services of the party employed, and he contracts to "do the work for a definite period, and enters upon and con"tinues in its faithful performance until prevented by his death, "or other cause, without fault on his part, from completing it, "and the employer has received actual benefit from the service "rendered, the representative of the party may recover from "the employer for the services rendered. The rule that, "when the contract is entire, full performance must be shown, "or there can be no recovery, applies only where the party "employed is to blame for the non-performance." In another New York case, where the employer tried to show that the service which had been partially performed was not worth as much as he had agreed to pay for it, the court held that "the compensation in such cases is not confined to "quantum meruit, but is measured by the contract in propor"tion to the time performed." The highest courts of several other States have maintained the same doctrine; and in a case where sickness, not death, was the cause of the suspension of the servant's labors, it has been held that the same rule applied. In certain instances, however, the cessation of proceedings may cause prejudice to the employer's interests, and in such cases it has been held that he is entitled to set off the damage he has sustained from what he would otherwise be obliged to pay the representatives of the deceased. It is therefore prudent for the executors or administrators of a deceased architect to see that the work on hand in the office is promptly wound up to the satisfaction of the various clients. Wolfe vs. 20 N. Y. 197. Clark vs. Gilbert, 26 N. Y. 279. Cole vs. Smith, 4 Ind. 79. Allen vs. McKibbin, 5 Mich. 449. Fahy vs. North. 19 Barb. 341. Patrick vs. Putnam, 27 Vt. 759. The Schedule Clause as to Ownership of Drawings. THE CHAPTER X. THE OWNERSHIP OF PLANS. HE schedule of the American Institute of Architects contains a clause which says that "Drawings, as instruments of service, are the property of the architect." Although this clause expresses what architects, without exception, believe to be the natural and proper arrangement, it finds little sanction in courts. Why an architect's drawings should be regarded in any different light from a physician's note-books, or a lawyer's abstracts of title, or any of the other records and illustrations which professional men make to facilitate their service to their clients, and keep for their clients' benefit as much as for their own, is a mystery, yet they are unquestionably so regarded. Whether an engineer's plans and note-books, which he uses for the benefit of his clients in the same way that an architect does his drawings, and of which, like the architect, he furnishes, as a rule, only tracings, would be regarded as the property of the engineer or the owner seems uncertain, and there appears to be no recorded case in which the question has been raised; but architects' drawings are more available for laymen's use, and occasionally form the subject of a struggle in the courts, which usually ends unfavorably for the architect. These struggles, unfortunately, perhaps, for the architects, take place generally in the inferior courts, and there does not appear to be a single decision of a court of record in the United States or in England on the subject. |
