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PART IV

THE ARCHITECT AND THE CON

TRACTOR-CONCLUSION

CHAPTER I

THE ARCHITECT AND THE

CONTRACTOR

§ 114. Rights and Liabilities in General.-The relations in general of the architect and the contractor, and their mutual rights and liabilities, closely inter-related as they are with the other phases of the subject, have been already considered in some detail. It is proper to note again, however, that while the architect's primary duty is to the owner, his client, he must nevertheless, and especially in his capacity as arbitrator, be careful that his decisions and the course pursued by him are consistent with fair dealing to the contractor as well.

In the matter of the issuance of certificates he should exercise special care, for in this detail the builder is largely within the power of the architect, under the provisions of the ordinary building contract of to-day. For an improper refusal by the architect to issue a certificate, the issuance of which is essential to the proper protection and enforcement of the rights of the builder, the latter may, it has been indicated by the British courts and by at least one court in this country,

hold the architect liable for the damages sustained by reason of his refusal.1

§ 115. Right to Plans.-With respect to the plans, the builder is not in a position to make the claim of ownership which can be set up by the owner. At the same time, it seems that there is recognized a right in the builder to use and to hold the plans in his possession, during the time that the building is in course of erection. The courts have gone so far, in one jurisdiction at least, as to hold, under this doctrine, that the builder may maintain an action in trespass against the architect, where the latter has taken the plans from the possession of the builder without his consent and prior to the completion of the work; and that the taking of the plans by the architect under these circumstances, if done secretly and with felonious intent to convert them to the architect's own uses, and to deprive the builder of the use of them, is ground for a prosecution for larceny.2

It will be observed that in the case last cited, the decision on the point of larceny is predicted on the assumption that the plans are taken with felonious intent, which element being assumed or shown naturally leads to the conclusion reached. The case is interesting nevertheless as illustrative of the fact that care should be exercised not to assume too boldly an ownership of or control over the plans, under any and all circumstances.

1 Ludbrook v. Barrett, 46 L. J. C. P. 798; Howard County v. Pesha (Neb.), 172 N. W.

55,

citing

2 Lunsford Ala. 250.

5 C. J. 278.

v. Dietrich, 86

CHAPTER II

CONCLUSION

§ 116. Summary and Final Suggestions.-In closing, it may be well to draw attention by way of brief summary to some of the more important of the points referred to in the foregoing pages, and especially to those points of particular importance to the proper protection of the architect and to the enforcement of his rights.

If the architect is to practice his profession, and deal with his clients, with a minimum of legal controversy or loss, he must, in the first place, see that his contract with his employer is as definite in all of its terms and provisions as it is possible to make it. If his employment is merely for the purpose of preparing preliminary drawings, he should take care that nothing is said from which it can be assumed that he waives his right to payment for the work done; and if possible it should be expressly understood that payment is expected. On the points of agency and extras, especially, the contract and understanding should be full and unequivocal, and as to both of these points the architect should exercise the greatest care in the assumption of any authority not expressly and clearly provided for. He should remember that the building contract is, as to

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