Imagens das páginas
PDF
ePub

With the contractor, the relationship of the architect, as will be seen, is different, but here too he is under the necessity of acting in perfect sincerity and good faith, although under none of those special obligations which flow from his relation to his client and from the direct contract between them. To the public also, as in the proper supervision of the construction of public or semi-public buildings, he is under obligations to use all reasonable care and diligence, although his obligations and duties in this respect are naturally less than those of a physician on whom the public health may depend or of an attorney, who is an officer of the court before which he practices. The public obligations of the architect are, however, being recognized more generally of late in the United States as is evidenced by decisions recognizing his accountability to third parties, under circumstances which will be noted, and by legislation in various States regulating the requirements for admission of architects to practice and requiring the obtaining of State certificates before practice may be commenced."

§4. Architect to Have No Concealed or Conflicting Interests in Contract.-Inasmuch as the position of the architect is one of trust and confidence, it is clear that he should not, certainly not without the consent of the owner, have the slightest pecuniary interest in the contract or in its performance, other than his interest under his

9 Cp. various state statutes creating boards of examiners

and requiring registration of architects and engineers.

agreement with his employer, or have any private agreements or understandings of any character whatsoever, relative to the contract or the work in hand, with the contractor or with subcontractors or employees. Such agreements or understandings at once disqualify the architect from acting in that entirely disinterested and single-minded manner, which his position of trust and confidence requires. By entering into any such private agreement or understanding, or by securing any pecuniary interest in the contract other than his interest under his agreement with his employer, the architect exposes himself at once to the danger of dismissal by his client.

It is a well recognized legal principle that an architect who has any pecuniary interest in a contract or its performance other than his interest in the agreed compensation which he is to receive, or, in the absence of express agreement regarding compensation, his interest in such reasonable compensation as he may be entitled to, or an architect who has accepted commissions in connection with the contract from the contractor, has so acted as to make it impossible for him to continue properly to represent his employer, and that the latter will be justified in terminating the employment forthwith accordingly.10

Where the superintendent of a building whose

10 Norris v. Day, 10 L. J. N. S., Exch. in Eq., 43; Tahrland v. Rodier, 16 L. C. Rep. 473; Lloyds Law of Building and

Buildings, second edition, § 11; American and English Encyclopedia of Law, 2d. ed., vol. 2, pp. 815-816.

duties required that he pass upon accounts for materials furnished, made an agreement with a lumber dealer, by the terms of which the latter was required to pay the superintendent a commission on all sales of lumber made as a result of the exercise of his influence with those by whom he was employed, the court held the agreement to be void as against public policy, and this although it appeared that it was not the duty of the superintendent to pass upon accounts for materials furnished to his employers.11

The same court in a shortly subsequent decision decided that a writing charging a supervising architect with having given work upon a building, in connection with which he was employed, to certain persons who paid him a commission therefor, was not actionable per se,12 which is to say that it did not in itself charge the architect with any criminal or disgraceful conduct, or hold him up to public contempt, scorn, ridicule, or obloquy, or tend to injure him in his profession.

While opinions may, perhaps, properly differ as to whether such a statement is libelous or not -and there are those who believe that in our American regard for free speech and a free press, we have not always accorded sufficient protection to the individual, against slander and against libel-these two cases well illustrate the importance in which the courts hold the trust obligations, if we may so term them, of the architect. Even

11 Atlee v. Fink, 75 Mo. 100, 42 Am. Rep. 385.

12 Legg v. Dunleavy, 80 Mo. 558, 50 Am. Rep. 512.

where it does not appear that any damage has been occasioned the owner by the acceptance of a commission by the superintendent, nor yet that the mere acceptance of the commission is in itself to be taken as an improper act morally on the part of the superintendent, yet the requirement that one in the latter's position shall be free to carry out his duties without being influenced consciously or unconsciously by conflicting interests, is so insistent that the commission agreement referred to was properly held to be against public policy and consequently void.

It has quite properly been held also that an architect should not be employed by both the owner and the contractor and receive pay from each of them.13 If this were done, however, with the full knowledge and consent of both the owner and the builder the same objection could not justly be advanced. Even so the architect would do well not to enter into any such arrangement, except under exceptional and compelling circumstances.

Where the architect brings suit for professional services rendered and the owner, in defending, claims negligence on the part of the architect and it appears that the builder has made advances or loans to the architect, these advances and loans. are properly provable by the owner as bearing upon the question of negligence alleged in the answer, no actual fraud having been pleaded.14

13 Tahrland v. Rodier 16 L. C. 473.

14 Gilman v. Stevens, 54 Howard's Prac. (N. Y.) 197.

So too the duties of a building superintendent are of such a nature that it is not proper that he be appointed by or controlled by the contractor; and the inconsistency of the two positions is such that a contract for the employment of the contractor as superintendent of his own work will not be implied.15

If the architect accept employment from the contractor or builder this act on his part will, in at least one jurisdiction, be held to relieve the owner from any liability based on claims for extra work. 16 Where the architect prepared the plans and specifications and thereafter was made the contractor for the erection of the building, he was not allowed to claim that a defect in construction was one of plans and specifications and not of building, since he was responsible both for plans and for construction.17

§ 5. Limitation of Rule-Estoppel of Owner. -While it has been seen that no private agreements or understandings between the architect and the builder will be countenanced, it should be noted, in limitation of the general rule, that, in cases where the circumstances are or must be known to the owner, the mere existence of an agreement between the architect and the builder will not be allowed to be interposed by the owner as a bar to a recovery by the architect for his 15 Friedland v. McNeil, 33 Mich. 40.

16 Day & Co. V. Pickens County, 53 S. Carolina, 46 at

17 Louisiana Molasses Co. v. Le Sassier et al., 52 La. Ann. 2070.

« AnteriorContinuar »