§ 66. Limitation of Rule.—In restriction of the general rule as stated it should be noted that its application is dependent upon the absence of fraud,2 or mistake, in the transaction. A pro

vision that the architect is to decide the true construction and meaning of the drawings and specifications, does not apply, the New York courts have held, to disputes regarding the construction of the contract. In a case where the question related to the necessity of the contractor filling in between iron beams on the basement floor with terra cotta blocks, under the provisions of the contract between him and the main contractor, it was held that this had nothing to do with the drawings and specifications, and that the decision of the architect relative thereto was, therefore, not controlling.*

Another example of the comparatively strict construction which the courts have placed, in some instances, upon the provisions vesting the architect with large powers of decision or arbitration, is the holding of the British courts that, even where it is provided that any question arising between the owner and contractor, or relating in any way to the contract, or involving the deter

mination of a dispute between any of the contractors in regard to the building, shall be determined by the architect, whose decision shall be absolute and final, yet, the differences between the contractor and his employees, as to extras, will not be covered by such a provision, and the provision will be applied only to disputes in regard to the manner of carrying on the different departments of the work."

In accordance with this rule of strict construction also, is the holding that where the architect is given power to determine and construe the meaning of the plans and specifications which are made part of the contract, this power does not give to him the power to decide what is within. and what without the contract and that any such right must rest on an express grant of it to the architect rather than on any mere implication."

While the courts have applied the restrictions noted, in the application of the general doctrine, it is still true that they have, with substantial unanimity, recognized the validity of provisions vesting the architect with many different and broad authorities as supervisor of the work and as arbitrator of any disputes arising in connection therewith. Thus they have sustained and enforced the provisions so common in the building contracts and general conditions in use at the present day, providing that to the architect may properly be left the determination of any matters 6 Tomlinson V. County (Wis.), 173 N. W. 300.

Pashby v. Mayor, etc., of Birmingham, 86 E. C. L. 2.

11

8

of differences, whether relating to the quantity, quality or value of the work done; or to payments; or to the securing of certificates preliminary to the payment of moneys due; or to performance; 10 or to the measurement of the work; 11 or to loss or expense or damage occasioned the owner by reason of a fault of the builder.12 Under certain conditions this general rule may not apply. For instance, the provision requiring that the certificate of the architect must be secured before payment can be successfully demanded, will not be enforced where the death of the architect has intervened.13 Also, the provision making the architect the arbitrator of the amount or value of the work performed, or of the correctness of its performance, will not prevent the question of substantial performance being raised,1 or prevent the owner from refusing payment on the ground that substantial performance has not been had.15

§ 67. Extras.-The importance of any contract provisions in regard to extras has been already referred to. It should be noted here, however,

7 Mitchell v. Dougherty, 86 Federal 859.

8 Elliott v. Missouri, etc., Co., 74 Federal 707; Chicago, etc., Co. v. Price, 138 U. S. 185.

9 Wilcox v. Stephenson, 30 Fla. 377; Mitchell v. Kavanagh, 38 Iowa 286; Oldershaw V. Garner, 38 V. C. Q. B. 37.

10 Wilcox v. Stephenson, 30 Florida 377; Schliess v. Grand Rapids, 131 Michigan 52.

11 McMahon v. N. Y. Co., 20 N. Y. 463.

99.

12 White v. Abbott, 188 Mass.

13 Pleasant College v. Colett, 142 Kentucky 342.

14 Schliess v. Grand Rapids, 131 Michigan 52.

15 Oberlies v. Bullinger, 75 Hun. (N. Y.) 248.

that the customary contract provision requiring that extra work be authorized in writing, is of more than ordinary importance in the present connection.

It is especially advisable on account of the disputes that may arise in connection with this provision, that it be so phrased as to preclude any misunderstandings or difficulty, so far as this can possibly be done. The Connecticut courts have recognized as valid and have enforced the following form of proviso: "The contractor shall make no claim for extra work unless the same shall be done in pursuance of a written order from the architect, and all such claims shall be made to the architect in writing before the next ensuing payment, or shall be considered abandoned by the contractor." 16 This form might well be made a trifle fuller to prevent any possibility of mistake, but is interesting as exemplifying the main and essential points which the contract in this connection should cover. A desirable safeguard is a provision requiring the written approval of the owner as well as of the architect.

The disposition of the courts is to protect the owner in regard to extra work, by requiring that contract conditions precedent in regard thereto must be strictly complied with. Even if there be a separate provision in the contract to the effect that disputes in regard to the value of extra work must be submitted to arbitration, yet this provision will not in any way negative the effect of 16 O'Keefe v. St. Francis's Church, 59 Conn. 351.

a provision requiring the builder to produce the architect's certificate of the satisfactory completion of the extra work, inasmuch as the arbitration provision in such a case has to do merely with the value of the extra work, as distinguished from the proper completion thereof.17

The courts have likewise very generally upheld and recognized the validity of the other provisions of the ordinary building contract, such as the provision that no extra work shall be done without the written order of the architect, and that no payment need be made for it, if done, without the production of the architect's order.18 The order may, however, be implied from some additional act of the parties, such, for instance, as the adoption of new specifications requiring extra work, an act which is, in itself, equivalent to a proper order for such work.19 The validity has been upheld also of provisions that there shall be no departure from the contract terms or from the specifications or drawings, without the consent of the architect or engineer in charge,20 and that there shall be no subletting of the contract unless the owner's consent be secured.21 While these provisions are inserted for the benefit of the

17 Fox v. Powers, 65 (N. Y.) A. D. 112.

18 Langley v. Rouss, 185 N. Y. 201.

19 Hedden Construction Co. v. Rossiter, etc., Co., 136 N. Y. A. D. 601-compare O'Keefe v.

St. Francis's Church, 59 Conn. 551.

20 White v. San Rafael, etc., Co., 50 Cal. 417.

21 Danforth V. Tennessee, etc., Co., 93 Alabama 614.