Bliss vs. 34 Beav. 508. Courts of Equity will Interfere in Case of Collusion. One more case, where the charge of unfair practices against the architect was disproved, but in which the court took occasion to explain the law relating to the matter, will be sufficient to illustrate this part of the subject. A man named Davis contracted to build a theatre. By the contract, the architects were to be the sole judges upon all matters relating to the contract, and their certificate was to be "binding and conclusive on both parties;" and, on any dispute connected with the works, their decision was to be "final, without appeal." Davis failed before the building was finished, and his assignee filed a bill in equity against Smith, the owner of the theatre, and the two architects, alleging that, although the architects "had not expressed and could not reasonably or fairly have expressed any dissatisfaction with the execution of the works, but were, in fact, satisfied therewith, they declined to ascertain or certify the amount due to the plaintiff, and withheld their certificate, contrary to and in violation of the duties undertaken by them." The complaint further alleged that in so refusing and declining the architects had "been and were acting under the authority and at the instigation of and in collusion with Smith, who had, in fact, forbidden them to accede to the said requirements." The Court of the Rolls, in Chancery, before which the case was tried, held, in general, that courts of equity would interfere where there was collusive dealing and concert between the employer and the person whom he had appointed architect, overseer or agent, for the purpose of injuring the contractor, or defeating his claim; and it would also interfere in cases where the accounts between the parties were so complicated that they could not be properly adjusted by a court of law. In the present case, the court found that the charge of collusion against the architects was completely disproved, and dismissed the case, with costs, remarking, in the manner characteristic of English courts, that the trouble with the builder was evidently not that he was badly treated by the architects, but that "he was trying to carry out his contract on too small capital." 66 It will be observed that all these are English cases; but as the decisions seem to throw more light on the relations of the architect and the builder than the similar ones in our courts, in which the relation of the builder and the owner is made the principal point, and as these particular cases are much quoted as precedents in our courts, it seems best to give them. It occasionally happens that delays occur in building through the fault or neglect of the architect; and in this case the architect must see that he does not try to push off the burden of responsibility for them from his own shoulders on those of the builder. The latter would probably not be allowed, if he had made no objection at the time to the delays, to pretend later that they had been the cause of a failure on his part to fulfil his contract; but, at the same time, the architect, if he had really caused serious delay by neglect to furnish drawings, for example, when the contractor needed and asked for them, would not be allowed to use his position as final arbitrator in matters relating to the contract, to impose penalties upon the contractor for the delay caused by his own neglect. In an English case, the architect had delayed the plans, and in consequence, the operations on the building. The contractor asked the architect for an extension of the time set for completion, but it was refused. The building not being finished at the agreed time, the contract was declared forfeited, and the work put into other hands. On the suit of the original builder, the contract was held to have been wrongfully forfeited. In English practice, an amount of authority is given to the architect which is not so common here. Of course, the kind and degree of the authority which he shall have over the builder is always limited by the contract between the builder and the owner, and if the contractor does not wish to agree to take any particular architect as final referee in all matters relating to the building, he has only to refuse to sign a contract making him so. If, however, he agrees with the owner that certain matters shall be left to the architect as final referee, he will be understood as being willing to trust implicitly in his judgment and skill, so long as they are honestly exercised; and Delay Through Architect's Fault. Roberts vs. 4 L. J. C. P. 755, Great Authority of Architect in England. Stevenson vs. Watson, 4 C. P. D. 148. he will not generally be allowed to call that judgment and skill in question in court, unless he is prepared to prove that they have been dishonestly and fraudulently perverted for his injury. A builder once, being disappointed in the amount of the final certificate which he had received from the architect, and finding it impossible to collect from the owner any more money without an additional certificate, sued the owner for the balance which he conceived to be due him, and endeavored to evade the clause in the contract which made the obtaining of a certificate the indispensable preliminary to the payment of any money by the owner, by alleging that the architect did not use due care and skill in ascertaining the amount due, and that he had knowingly or negligently certified to a much smaller sum than was, in fact, due, and had refused to reconsider his certificate. The court held that "no cause of action "was disclosed." If the builder had charged that the architect fraudulently, and in collusion with the owner, had given a certificate for less than was due him, his complaint would have shown a good cause of action, although, of course, he would have had to substantiate his charges, or lose his case; but the court would not help a man to escape from the award of an architect in whose skill and care he had agreed to trust, on the ground that he had turned out not to be so skilful and careful as had been supposed. This rule is, however, not without certain exceptions in this country, which will be treated of later, so that architects should not fail to show diligence and care, as well as perfect honesty, in their adjustment of accounts between the owner and the contractor, if they would escape all blame. CHAPTER XII. THE BUILDER'S DUTIES TOWARD THE ARCHITECT. 【FTER the builder has signed his contract, agreeing to do certain work under the supervision, according to the directions, and to the satisfaction of a certain architect, he must see that his promises in this respect are strictly complied with. Many builders, especially in the country, where work is very commonly done from the builder's own plans, and without the supervision of an architect, appear to be tormented by jealousy of any architect under whose direction they happen to be placed, and, notwithstanding their promise in their contract to obey his instructions, take pleasure in disregarding them, and in varying wantonly from his drawings, apparently with no object except to show their independence of him. These actions are not only very annoying to the architect, but are decidedly injurious to him, as the effect of the building, as a work of art, may be ruined by slight variations in the projec tion of a cornice, or the spacing of string-courses; yet, if the materials and workmanship are good, so that the builder cannot be accused of cheating his employer, the architect dislikes to delay the structure by ordering, as he has an undoubted right to do, the portions incorrectly executed to be pulled down, and rebuilt in accordance with the drawings to which the builder has agreed to conform. Moreover, he knows by experience that the owner is likely, if he says anything about the matter, to consider him conceited and unreasonable in making so much fuss about conformity Builder Must Keep His Promises. Importance of Satisfying the Architect. Clark vs. Trustees vs. 5 Bradw. 567. with his design, which, as the builder maintains, is no better than any carpenter could make, and not so good as the modification which has already been executed; so that, unless he is sure that the owner will support him, even to the extent of waiting a little longer for his house, in demanding exact compliance with the plans, he will probably let the matter go, and content himself with a resolution never to have anything more to do with that builder. Such conduct as this, while dishonorable and wrong, is extremely dangerous for the builder. It will be shown later, by many examples, that if the owner should choose to take the architect's view of the matter, the contractor may be compelled to correct every intentional or accidental variation from the plans to which the architect has objected, even if he should have to pull down and rebuild the house from the foundations to do so. Where the builder finds himself in a predicament of this sort, he usually tries to escape from it by alleging that he did. not understand the plans, or that they were obscure, or impracticable; and it is well to be forewarned that this defence would avail him nothing before a court. It has been held by the two highest courts of Illinois that "a contractor is not excused for "not understanding the plans. His undertaking to erect a "building in accordance with certain drawings and specifica"tions implies that he does understand them, and he cannot "escape liability on the ground that he exercised ordinary skill "and care to understand them, and failed to comprehend them. "In such a case, if there is obscurity in the drawings, con"tractors must apply to the architect for directions, where "work is to be done under the direction of an architect. If "they rely on their own judgment, they must take the conse"quences." In regard, also, to the clause embodied in most building. contracts, which provides that the work shall be done to the satisfaction of the architect, and that payments are to be made only on the production of his written certificate that he is |
