services. Thus where the owners employ an architect to superintend the construction of a building of which he is, also, one of the contractors, they are not allowed in an action by the architect to recover for his services as such superintendent, it appearing that the services have been properly performed, to plead in defence that, by reason of his occupying the two inconsistent positions of architect and contractor, a recovery is barred on the grounds of public policy.18 Similarly, the contract of an architect with a builder, made with the knowledge of the owner and attached to the original building contract and recorded, is not to be considered as void unless actual fraud or deception be shown.19 § 6. Assumption of Good Faith.-While the courts will not encourage or countenance any act by the architect inconsistent with his position of trust and responsibility they are, nevertheless, inclined to consider the architect, by reason of the very nature of his profession, honorable and single-minded in his employer's interest until the opposite be shown, and will not adopt a strained construction of his natural and entirely honorable acts. In accordance with this position a French court has refused to presume that the architect was employed by the builder from the fact that the builder went to the architect to see the plans or to 18 Shaw v. Andrews, 9 Cal. 73. 19 Orlandi et al. v. Gray et al.; Hayne v. Gray; 125 Cal. 372. borrow them.20 finitesimal number of cases in England and in this country in which any improper conduct on the part of the architect has appeared, it is evident that the architectural profession may, with no small degree of satisfaction, view the record for loyalty to its ethics, to its duties and to its responsibilities, established by its members. From the comparatively in 20 Poitras v. Deslauriers, 4 Rev. Leg. 375. CHAPTER II THE ARCHITECT AS AGENT OF THE OWNER 87. Importance of Agency Relationship.There is probably no phase of the whole subject of architecture which presents more questions for legal determination and none presenting situations of more difficulty and requiring more careful handling by the architect, not only in the interest of his client but in his own interest as well, than that dealing with the character, scope and effect of the agency of the architect. In employment necessitating merely the preparation of plans and specifications, or the giving of expert advice, and in all matters of mere consultation or dealings with the client alone, the question of agency does not arise, but the moment that, as in the ordinary case, there is added the duty of superintendence, or dealings in behalf of the owner with the builder or third parties, the question of agency becomes at once of vital importance. The directions to the contractor in regard to the work, the allowance of extras, the giving of certificates, the changing of the contract in any detail of construction, material, or otherwise, all are at once involved. § 8. Agency, Express and Implied.-The agency of the architect may, broadly speaking, be either express or implied. Where express, that is where the authority has been conferred in definite terms, it may be either written or oral. Where implied and where, consequently, there is no formal agreement either written or oral by which to determine and measure the extent and character of the authority conferred, the question of the architect's agency will be determined by the ordinary principles of the law of agency, modified as they may be by circumstances, and by the customs and rules governing the practice of the architectural profession. When the terms are express, whether written or oral, no amount of custom will justify a departure from them-assuming of course that there are no provisions which are illegal or opposed to public policy—and the terms of the authority delegated must be strictly respected and adhered to. It will be disregarded or exceeded by the architect at the immediate risk of his incurring a direct personal liability.1 § 9. Extras. Of the many questions which arise in connection with the agency of the architect there are none, probably, of more vital inter 1 Homersham V. Wolverhampton Water-works Co., 6 Exch. 137; Thayer v. Vermont Central Railroad Co., 24 Vt. 440; Vanderwerker et al. v. Vermont Central Railroad Co., 27 Vt. 125, Id. 130; Herrick v. Estate of Sewall Belknap et al., 27 Vt. 673; Ahern v. Boyce, 19 Mo. Ap. 552; Woodruff V. Rochester and Pittsburgh Railroad Co., 108 N. Y. 39; Weggv. Greenstine, 114 Mich. 310; Redfield on Law of Railroads, 6th ed., vol. I, p. 430. ner est to the owner, to the architect, and to the builder, than those which relate to the matter of extra work. Almost invariably, before the contract has been finally completed, some extra work becomes necessary. It is in the interest of all concerned that the respective rights and liabilities of the parties in this connection be as clearly understood as possible. The owner should understand them that he may not be put to needless expense. The builder should understand them that he may not be placed in a position where, after proceeding in good faith with extra work, he finds he can not recover for the work which he has done. The architect should understand them, both that he may safeguard the interests of his client and that he may not himself incur a personal liability to pay for extra work performed as the result of an authorization given by him, but which he had no power or right to give. In every case where the contract contains a clause or clauses designed to protect the owner from claims for extra work, both the architect and the contractor will do well to proceed most cautiously, the one in authorizing and the other in performing any extra work, in any manner inconsistent with a strict interpretation of the contract provisions. 2 In a leading case already referred to a construction company contracted with the defendant, a railroad company, to construct a portion of its 2 Woodruff v. Rochester & Pittsburgh R. R. Co., 108 N. Y. 39. |