66 "Under this stipulation they were not to act arbitrarily, capriciously and unreasonably, but, exercising an honest and "reasonable judgment, the plaintiff, by his contract, bound "himself to conform to it, and the city is chargeable with "no breach of contract." It is probable that an architect, as being more skilled in the sort of work under his charge, and less likely to be biassed in any way, would find his discretion sustained by a court under similar circumstances, at least as completely as that of a committee, but the question does not seem to have come before our highest courts. Architects, however, often have to appear before judges and juries, and the respect felt for their opinion is shown by the fact that a controversy between an owner and a contractor is almost always decided in conformity with the architect's judgment of the matter. Where architects are called as experts before a court, it is well for them to remember that they are entitled to privileges far beyond those accorded to ordinary witnesses; and, as the opposing counsel generally knows that their testimony will have great weight with both judge and jury, and will do his best to confuse them, so as to diminish the force of their evidence, they should not allow themselves to be hurried, but should insist upon having questions clearly put, and should take time enough to make sure of the correctness of their replies. The main distinction between an expert witness and one of the ordinary kind is that the former alone is allowed to testify to his opinion, while the latter can testify only to facts. Theoretically, all testimony should concern itself exclusively with facts, but the law holds that, in certain cases, ordinary jurymen have not the special knowledge which will enable them to understand the facts shown, without interpretation, and a person skilled in the interpretation of such facts may be called in to assist them. An expert witness, however, can give an opinion only as to matters in which he is specially skilled. In other matters he Architects as Expert Witnesses. Daniels vs. 2 Mich. 183. Harris vs. Panama R. R., 32 N. Y. 427, People vs. Hall, 48 Mich. 482. Dewitt rs. 9 N. Y. 371. Daniels vs. 2 Mich. 183. Daniels vs. Mosher, 2 Mich. 183. Keith vs. 10 Cush. 453. Hitchcock vs. People vs. 48 Mich. 482. Jewitt vs. 134 Mass. 505. can testify to facts only, leaving the court to draw its own conclusions from them. Unlike other witnesses, an expert is allowed, and generally required, to form the opinion which he is called upon to give from the accounts given of the facts by others. If he has personal knowledge of the facts in the controversy, his testimony will be so much the more valuable, for no one can observe the facts so intelligently as he; but in this case he must be prepared to give a full description of the facts on which his opinion is based. It has been held in Michigan that "an "expert cannot give an opinion based on his personal exami"nation unless the facts on which the opinion is founded are "all stated," and he must endeavor to give the court a perfectly impartial and conscientious account of what he has seen, and what he thinks about it. In most cases, however, he is not personally acquainted with the circumstances, and must hear them from others. He is then generally called in to listen to certain portions of the evidence, from which his opinion is to be formed; or he may be obliged to satisfy himself with reading a stenographic report of the testimony, or even with hearing a lawyer's version of it. Where facts are disputed, the expert may be say what his opinion would be in either case; but it has been held that experts are not obliged to form an opinion on theoretical propositions, and that they cannot be examined upon theories that are contrary to the uncontradicted facts of the case. called upon to THE CHAPTER VI. THE ARCHITECT AS AGENT FOR THE OWNER. HE question of how far the architect is an agent for the owner, and is empowered to bind him by his actions or decisions, is one of extreme importance to the profession. The ordinary contract between owners and builders leaves this point somewhat indefinite, and architects, particularly the young and zealous ones, frequently get into trouble through not knowing how far they are entitled to help their employer without his consent. The general rule is that "whatever may be necessary to "complete an act that an agent is authorized to perform is in"cluded within the authority of the agent." This rule was laid down by a New York court, in a case where the Springfield Iron Company had bought six hundred tons of old rails, which were, apparently by some mistake, landed on a wharf in New York. This landing was not by direction of the iron company, and it was not liable for the wharfage on the rails. The company sent a salesman, named Mack, to New York, to hurry forward the rails in all possible ways, and instructed him to see that there were no delays in shipping them, as it was important for the company to secure them at once. When all but seventy-five tons of the rails had been shipped, the wharf company refused to allow these to be removed, saying that it must keep these until its bill for wharfage, amounting, with the interest at the time of bringing the suit, to nine hundred and ten dollars, was paid. Mack asked the wharf company to let How far can the Architect Bind the Owner? General Rule. Robinson vs. Robinson vs. Implied Authority in Matters of Construction. Commissioners vs. Motherwell, 123 Ind. 364. the rails go, saying that his company was good for the amount of the bill; but the wharf company replied that it had a lien on the rails for the charges, and would not let them go until they were paid. Mack replied, in substance, that it was of importance to his company to get the iron through, before the canal closed, and that his company would pay the bill; and the wharf company then allowed it to be removed. There was some difference in the testimony as to Mack's exact words. The iron company, after it got the rails, refused to pay the wharfage bill, on the ground that Mack was not authorized to make such a contract on its account; but the court held that he was sufficiently authorized, and that his contract was binding on the company. In the case of architects, the rule appears to be that, outside of the duties expressly mentioned in the contract, they are impliedly authorized to order, and to bind the owner to pay for, work and materials which may prove to be necessary for securing the safety of the building under unforeseen contingencies, and even in cases where more mature consideration shows that it is necessary, for the same end, to vary from the letter of the original contract. A Board of County Commissioners, in Indiana, contracted with a builder for the construction of a building, according to certain plans and specifications. The contract provided that the Commissioners might order changes from the plans and specifications, "the value of said change being first agreed on in writing, and the subsidiary contract endorsed on or attached to this contract." Nothing was said, apparently, about the architects having authority to order changes, but McDonald Brothers were named in the contract as the architects to superintend the work on behalf of the Commissioners, and the work was to be performed under their supervision. During the progress of the work, one of the McDonalds ordered certain iron columns to be made eight inches in diameter, instead of six inches, as shown by the plans and specifications. No contract was made in regard to the change, nor did the Commissioners, or any person for them, ever ask for any agreement as to the price of the extra work. The building was finished, and accepted by the Commissioners, and a charge made for the extra weight of columns, which the Commissioners refused to pay, on the ground that the extra work and material were not ordered as the contract provided. The case was brought before the Supreme Court, which said, confirming previous decisions to the same effect, "it has been held by this Court "that where the Board of Commissioners has power to appoint "a superintendent to act for them in the supervising of work, "he becomes the agent of the county for the purpose of con"structing the work, and that he may bind the county for "work done beyond that contemplated by the written con"tract." On the other hand, where the contract authorizes the architect to order extras, but specifies the manner in which he shall do so, he must be careful to give his orders in the way prescribed. In a Missouri case, the superintendent was authorized by the contract to order variations, but in case of omissions or additions, the cost or expense thereof were to be agreed on in writing, signed by the contractor and superintendent, "before the same should be done, or allowance claimed therefor." The superintendent certified to the value of work done, and it was claimed that his certificates included allowances for extra work, although the signed orders for such work were not produced. The Court of Appeals held that the superintendent had no power to waive the requirements of the contract in regard to orders for extra work. One of the most curious instances of an architect's exceeding his authority is to be found in the French books. One Savoye was architect of the church of Saugnière. He was authorized by the contract "to order works omitted or overlooked in the specification, and to provide for contingencies which might arise during the execution of the works"; and the contractor, Duchez, was bound by his contract to obey Savoye's orders. Savoye, without consulting the officials of Benton Co. vs. 54 Miss. 240. Board vs. Byrne, 67 Ind. 21. Bass rs. Board, 115 Ind. 234. Board vs. 122 Ind. 215. Ahern vs. Boyce, 19 Mo. App. 552. A French Instance. Commune de Colombier-Saugnière rs. Duchez et SaToye. Dalloz, 1883, 3.92. |