CHAPTER I IN GENERAL § 53. Introductory.-Many of the mutual rights and duties of the owner and the builder, especially in the matter of extras, supervision, certificates and the like, have been already referred to. The lien rights of the contractor, of the subcontractor, and of the material-man, will be considered separately under "Liens" and in such detail that it will not be necesary to advert to them here. A brief summary of some of the matters already discussed, in their relation purely to the duties and rights of the owner and builder, is, however, appropriate at this point, before entering upon a detailed discussion of the construction contract. § 54. Compensation of Builder-Extras and Modification of Contract.-A very considerable number of the differences arising between the owner and contractor may be traced directly to the matter of extras. It is quite natural that this should be the case, inasmuch as it is in connection with extra work, especially, that the owner often feels that the expense of the work is being added to needlessly or improperly and, on the other hand, the contractor feels that he is be ing called upon to perform work not included or contemplated in the original contract and for which he should receive full pay. To support the right of the contractor to recover for extra work and the liability of the owner to pay for it, it must be shown, as the very basis of such recovery and liability, that the work done was properly authorized and that the authority was granted and the work done under such circumstances as to expressly or impliedly charge the owner with such knowledge and approval and acceptance thereof, as will legally render him liable to the contractor for the reasonable or agreed cost of the work. If the owner himself authorize extra work direct there can, of course, be no question of his liability to pay for it-if the price be agreed upon, upon the theory of the specific contract so made; in the absence of an agreement as to price, upon the theory of quantum meruit. It is probably more often the case, however, that it is the architect who authorizes extra work. Where this is done there is at once added to the situation another element, namely, the agency of the architect and his right and authority thereunder to bind the owner for the additional work authorized. A somewhat detailed discussion on this point has already been had.1 The questions which arise in this connection usually relate to, or depend upon, the terms of the 1 Part I, Chapter II, "The Architect as Agent of the Owner," Pp. 16. building contract. In so far as this is the case, they are considered in the two chapters next ensuing which are devoted to that contract. It has been seen that the general rule is that it is the primary duty of the architect, engaged to supervise the construction of a building, to see that the contract between his client and the builder is carried out in strict accordance with its terms, and that the architect, in the absence of special authorization, is not clothed with any right or authority whatsoever to change or to alter or to modify the terms of that contract, or to make new contracts which involve additional expense, or to authorize alterations in the plans and specifications as already agreed to, or extra work or material not specified in the original contract.2 It has been seen, also, that although the owner may, if he desire, constitute the architect his general agent and, by declaring him to be broadly the general agent of the owner, invest him with authority to bind the owner for extras or alterations, yet this is but an exception which proves the general and well established rule that the employment of the architect does not, in itself, constitute him the general agent of the client, but that his agency is limited directly by the terms and provisions of the understanding and agreement existing between his client and himself." The fact that the work done unexpectedly proves to be more expensive for the contractor 2 See Part I, Chapter II, pp. 16-29, and cases cited. 3 Part I, Chapter II, pp. 21-22, and cases cited. |