road. The construction company in turn made a contract with a third company to complete a certain portion of the section of the road covered by the contract between the construction company and the railroad company. The third company in turn sublet to the plaintiffs a portion of the work undertaken by it. Included in the terms of the subcontract was the following: "Extra Work-nor shall any claim be allowed for extra work unless the same shall be done in pursuance to a written order from the engineer in charge and the claim made at the first settlement after the work was executed, unless the chief engineer, at his discretion, should direct the claim or such part as he may deem just and equitable to be allowed." The plaintiffs in performing their work were called upon to do considerable excavating which was necessitated by the sides of the cut which they were making caving in on a number of occasions. For this work they claimed extras and the proof tended to show that they did the work at the request of the engineers in charge. There was no evidence that these engineers had any special authority from the defendant to bind it for this work, or to enter into any contract on its behalf relative thereto. Neither did it appear that the defendant had ratified the agreement alleged to have been made with the plaintiffs by the engineers. The Court, after referring to the terms of the contract with reference to extra work and above quoted, said: "This was one of the terms of the contract and we are unable to perceive that the engineers had any power or authority to alter or change it. It was inserted in the contract to protect the defendant from claims for extra work which might be based upon oral evidence, after the work was completed and when it might be difficult to prove the facts in relation thereto. If the engineers in charge had an unlimited authority to change the contract at their will, and to make special agreements for work fairly embraced therein, then the defendant had very little protection from the reduction of their contract to writing. If these engineers were the agents of the defendant, they were its agents with special powers, simply to do the engineering work and to superintend and direct as to the execution of the contract. But they had no power to alter or vary the terms of the contract or to create obligations binding upon the defendant not embraced in the contract." To state the rule in slightly different form: "Where the contract contains express provisions that no allowance shall be made against the company for extra work unless directed in writing under the hand of the engineer or some other person designated, or unless some other requisite formality be complied with, the party who performs extra work, upon the assurance of any agent of the company, that it will be allowed by the company, without the requisite formality, must look to the agent for compensation and can not recover of the company, either at law or in equity." 3 Redfield on the Law of Railroads, 6th ed., vol. I, p. 430; White v. San Rafael and San Quentin R. R. Co., 50 Cal. " 3 417, holding a verbal order for extra work to be of no effect where the contract, while providing that the engineers may It must be clearly understood that inasmuch as the agency of the architect is limited by the terms of the contract between himself and his client, the fact that he is employed as architect does not in itself constitute him the general agent of the client. The owner may constitute the architect his general agent for all purposes and by declaring him broadly to be "the agent of the owner" invest him thereby with authority to bind the owner for extras and for alterations.5 The general rule is nevertheless entirely clear that an architect engaged to superintend the construction of a building must see that the contract is carried out in accordance with its terms, and has no right, in the absence of special authorization, to change, to alter, or to modify, the terms of the contract between the owner and the builder, nor to make contracts for the owner, or new contracts involving additional expeness, nor to make direct alterations and additions, also provides that no payment for extra work shall be made, unless the latter has been ordered in writing by the engineer; Kirk v. Guardians, etc., 2 Phila. 640, 1 Redfield Am. R. R. Cases, 305. 4 Starkweather v. Goodman, 48 Conn. IOI; Crockett V. Chattahoochen Brick Co., 95 Ga. 540; Adlard v. Muldoon, 45 Ill. 193; Wacker v. Essex (Ind.), 119 N. E. 466; McNulty v. Keyser etc., Co., 112 Maryland 638; Coombs v. Beede, 89 Me. 187; Leverone v. Arancio, 179 Mass. 439; Weeks v. The Rector, etc., of Trinity Church, 56 (N.Y.) A. D. 195; Hall v. Whitney, 165 N. Y. Sup. 838; Kennard Carpet Co. v. Hotel Association (Texas), 197 S. W. 1139; Columbia Security Co. v. Aetna etc. Co. (Wash.), 183 Pac. 137; Dodge v. McDonnell, 14 Wis. 553. 5 Langley v. Rouss, 85 (N. Y.) A. D. 27; Thomas v. Stewart, 132 N. Y. 580; Kimberly, v. Dick, L. R. 13 Eq. 1; and see, Fairbanks v. Market House Assoc. (Missouri), 202 S. W. 596. any alterations in the plans and specifications, nor to authorize extra work or material other than that specified in the original contract. 6 § 10. Illustrations of Rule.-A leading case on this whole agency question, decided in Connecticut, as early as 1880, arose on the following state of facts. A builder entered into a written contract with the defendant whereby he agreed to 6 Fireproof Building Co. v. First National Bank, 54 Super. Court (N. Y.) 511; Glacius et al. v. Black, 50 N. Y. 145; Dillon v. City of Syracuse, 5 Silv. Supreme Court (N. Y.) 575, 9 N. Y. Supp. 98, 29 N. Y. St. Rep. 912; Fitzgerald v. Moran, 141 N. Y. 419; Woodruff v. Rochester, etc., R. Co., 108 N. Y. 39; Richard v. Clark, 43 Misc. (N. Y.) 622; Starkweather v. Goodman, 48 Conn. 101; Gray v. La Société Française, etc., 131 California, 566; Maldard et al. v. Moody et al., 105 Ga. 400; but see Smith et al. v. Farmers Trust Co., 97 Iowa 117, to the effect that where the contract expressly stipulates that excavations shall be made under the direction of the architect specified, a variation from the plans, by direction of the architect, although without the knowledge of the owner, will not justify any deduction from the contract price. Adlard v. Muldoon, 45 Ill. 193; Campbell v. Day, 90 Ill. 363; Watts v. Metcalf, 23 Ky. L. Rep. 2189, 66 S. W. Rep. 824; Lewis v. Slack, 27 Mo. App. 119; Bond v. The Mayor, etc., 19 N. J. Eq. 376; Mayes v. Reg., 23 Canadian Sup. Ct. 454, affirming 2 Exch. 403; Jones v. Reg., 7 Can. Sup. Ct., 570; Reg. v. Stars et al., Can. Sup. Ct. 118; Baltimore Cemetery Co. v. Coburn, 7 Maryland, 202; Stuart v. City of Cambridge, 125 Mass. 102; Leverone v. Arancio, 179 Mass. 439; McIntosh v. Hastings, 156 Mass. 344; Day v. Pickens Co., 53 S. C. 46; Hurley V. School District (Wash.), 215 Pac. 21; Bromley v. McHugh (Wash.), 210 Pac. 809; Columbia Security Co. v. Aetna etc. (Wash.), 183 Pac. 137; Dodge v. McDonnell, 14 Wis. 553; Wagner Co. v. Cawker, 112 Wis. 532; Fontano v. Robbins, 22 App. Cas. (D. C.) 253; Sharpe v. San Paulo, etc., Co., 27 L. T. Rep. N. S. 699, L. R. 8 Ch. App. 605 (notes), affirmed in L R. 8 Ch. App. 597; Rex. v. Peto, I Young & Jarvis 37; Cooper v. Langdon, 9 Meeson & Welsby 60; Hudson on Bldg. Contracts, vol. I, sec. 3. furnish the materials to build a house for the defendant in accordance with specified plans and specifications and for an agreed compensation. It was provided that all the materials and work should be accepted by the architect, who was specified, and that the latter should superintend the construction of the building. The builder, in entire good faith and under the direction of the architect, performed certain extra work, which varied from and was in addition to, the work outlined in the plans and specifications. When the house was nearing completion, the builder furnished the defendant with a written statement of the extra work and material and the defendant at that time made no objection to it, although it does not appear that he ratified it. It appeared also that at the time when the builder gave the defendant the written notice referred to the extra work had been actually performed upon, and the materials had been actually used in the construction of, the building and become a part thereof, and could not be withdrawn. Subsequently, other extras were ordered by the architect and furnished by the builder. It did not appear that at the time when the builder rendered his first bill for extras he suggested to the defendant the possibility of more extras being needed, or indeed that any thought was given to this point by either of the parties. The Court below gave judgment for the plaintiff and the defendant appealed. The higher court reversed the judgment, hold |