Sexton vs. Chicago, 107 Ill. 323. Discrepancies in Specifications. Williams vs. Fitzmaurice, 3 H. & N. 844. him that the plans for the skylights were not ready, that no sizes were marked on the tracings, and that he should not figure on them. Sexton put in his bid accordingly, and it was accepted, and a contract made by the city with him, which referred to "the plans, diagrams and specifications made and prepared for said work." When Sexton came to build the roof, the city demanded that he should put in rafters weighing from ten to thirteen and one-half pounds per foot, and should build the skylights. This he refused to do. On the trial, it was argued, on behalf of the city, that the original plans were the ones referred to in the contract, and that Sexton might have seen them, if he had asked to do so. The Supreme Court held that, although certain principles of law distinguish copies from original documents, they did not apply in this case. "The tracing copy," it said, "appears, at the time it was "made, to have been an exact copy of the original, and it "seems that changes were afterwards made on the original, "which, through inadvertence, were not corrected on the "copies. This was the fault of the city, and the loss due to it "cannot be fastened on Sexton, who is not to blame for it. "The expression plans and specifications,' in the contract, "does not refer exclusively to the original plans from which "the tracings are made. The latter, though for convenience "called tracings,' are as clearly 'plans' within the meaning "of the contract, to the extent of the work represented on "them, as the originals. In this case, they were given to "Sexton to estimate from, and he had a right to assume that they were the plans referred to in the contract." 66 Where the discrepancy is between two different clauses in the specification, or between the specification and the contract, there is greater difficulty in deciding which forms the actual agreement between the parties, but the decisions of the highest courts are usually found to agree with the conclusions of common-sense, without much regard to fine-spun technicalities. A builder named Williams agreed to build a house for the Hon. Captain Fitzmaurice. He furnished his own specifications. In the specification, under the head of "Carpenter and Joiner," a description was given of the dimensions of the joists, rafters, ridges, etc., but no mention was made of the flooring-boards. The specification stated, in general, that "the whole of the materials mentioned or otherwise in the foregoing particulars, necessary for the completion of the work, must be provided by the contractor." At the foot of the specification, Williams signed a memorandum, whereby he agreed with Captain Fitzmaurice "to do all the works of every kind mentioned and contained in the foregoing particulars, according, in every respect, to the drawings furnished, or to be furnished," for the sum of 1,100 pounds. The house was agreed to be completed and fit for occupation by August 1, 1858. Williams prepared the flooring-boards, brought them to the premises, and planed and fitted them to the various rooms; but refused to put them down without extra payment, because, as he said, the flooring was not mentioned in the specification; whereupon Fitzmaurice put an end to the contract, took possession of the works, and proceeded to complete the building, and used for the purpose the floor-boards which had been prepared for it. Williams demanded payment for the floor-boards, which, as he claimed, were his property, and, in the final settlement, refused to allow anything for the flooring. Both these points were brought before the court, which decided that Williams was not entitled to recover for the flooring as an extra, because it was included in the contract, though not mentioned in the specification; and that he could not maintain trover for the flooring-boards left on the premises by him, and subsequently used by Fitzmaurice. It appeared by the evidence that when Williams had got as far as the floors, and had the stock for them on the ground, and fitted to its place, he sent the following letter to Captain Fitzmaurice. "CONWAY, February 20, 1858. "I am unable to proceed with your building, for want of the floor-boards being put down, which are not part of my contract. If you wish me to put them down, I will do so on Williams vs. 3 H. &. N. 844. Williams vs. Fitzmaurice, 3 H. & N. 844. having an order to that effect. Unless they are put down immediately, I shall not be able to complete my contract by the time fixed, and if they are not down within four days from this time, I shall conclude that you do not intend for me to go on with my contract, and I will measure the work that I have done, so as to be paid for that only." There was some further evidence to the effect that Captain Fitzmaurice, before the contract was signed, wrote to Williams, saying that there appeared to him to be some omissions in the specification, but that he trusted to him to do everything as it should be; and it appeared that the payments which Williams had already received, at the time when he stopped work, amounted to more than the value of what he had done. 66 Baron Pollock, for the court, said: "I own that when the "rule was moved I had some doubt whether the specification was not to be regarded as the contract between the parties; "but, upon the whole facts being disclosed, it appears to me "that no person can entertain any reasonable doubt that it was "intended that the plaintiff should provide the flooring, as well "as the other materials requisite for the building, and that it "was merely by inadvertence that no mention of the flooring. "was made in the specification. That the plaintiff intended to "do it is manifested by his providing the material, which is "brought to the house ready to be put in its place as flooring." Baron Channell said: "I am of the same opinion. The "contract was that the house should be completed and fit for "occupation by the first of August, 1858, not that the works "therein before mentioned should be completed by that day. I "think that, looking at the terms of the contract, it would not "be reasonable to read it as if it excluded all work not specifi"cally mentioned. The plaintiff contracted to do the entire "work, in the various characters of bricklayer, carpenter, plumber, etc., for the sum of £1,100, and it is not the less a "contract to do the whole, because it is specified that certain 66 "parts of the building shall be constructed in a particular way. "It was a contract for the erection of a house, and, though the flooring was not mentioned in express terms, it was neces"sarily implied." 66 In a California case, however, where the contract was to build a house according to certain specifications, and the specifications said nothing about the roof, it was held that the roof was not included in the contract. Experts were called in to testify that the roof was implied in such contracts, if not mentioned; but the court said that: "Where a contract to build a house contains a specific "description of every part, with one exception, stipulating for "the manner, size, measurement and material of each with "great particularity, it must be held that the exception was "the result of design, and did not enter into the contract "of the parties." Reynolds vs. The Certifi cates. Irving vs. A CHAPTER XIV. THE ARCHITECT'S CERTIFICATE. FTER all the work is done, all the extra work noted, and if allowed as extra, a reasonable price fixed for it, and an account made of all omissions, in order that, if the owner does not wish to have them made good, a proper allowance may be made for them, the architect issues his certificate, which, being the document in accordance with which the accounts are closed, should be prepared with conscientious care. It is usual to pay the builder instalments of the contract price, as his work goes on, in accordance with interim, or provisional, certificates given by the architect, and, as it is impossible to judge as accurately of the value of work partly done as it is of a completed job under a contract, and as a large reserve is usually made from the total amount earned by the contractor, to serve as a margin to cover contingencies until the completion of the contract, the architect is commonly allowed a certain liberty in estimating the provisional amounts due; but he must, nevertheless, be careful not to over-estimate them, or he may, if the builder should suddenly abandon his contract, as builders are strongly tempted to do when they come into possession of more money than they have properly earned, find himself, like the unfortunate Canadian architect whose case is mentioned on page 76, compelled to pay out of his own pocket the difference between what he ought to have certified and the amount which the builder has obtained. It ought not to be necessary to say again that the certificate, |