"The contract sets forth the extent of Easton's agency for the defendant; he is only to see that the materials and workmanship are in accordance with the specifications. There remained no opportunity to Smith to extend that power by inference, and when he furnished materials for or performed labor upon the house in excess of the specifications upon the order of Easton, he assumed the risk of ratification by the defendant.

Nor is the defendant estopped from insisting upon this contract limitation upon Easton by the fact that when the house was nearly completed he received in silence a statement of work, and materials not specified in the written contract, which included some which he had not ordered; for these had been wrought into the building and were then beyond possibility of withdrawal by Smith, however strongly the defendant might have protested against payment for them. It is very clear therefore, that, as to these extras, Smith was not led into any action resulting in loss to him by the failure of the defendant to make the objection.

But it is said that other extras were afterwards ordered by Easton and furnished by Smith, and that, whatever might be the effect of the defendant's silence upon the extras already furnished, he ought to be regarded, by reason thereof, as authorizing the extras afterwards ordered. But it does not appear that Smith at that time suggested to him that there might be other extras ordered by Easton, or that the matter was thought of by either of them. Besides the question whether the defendant intended to influence the future action of Smith, or was guilty of such gross negligence that he could be chargeable with that intention, and the further question whether Smith was influenced by his conduct, were both questions of fact and not of law, and it is impossible for us to find these facts when the court below has failed to do so." 7

7 Starkweather v. Goodman, 48 Conn. 101.

In another leading case, in Massachusetts, the plaintiffs offered to show that they did the work for the value of which the suit was brought under the direction of the defendant's agent, the architect; that they stated to the latter that the work was not included in their contract and that he told them "to go ahead and do the work as he directed and they would be paid for it." The Court excluded this evidence, holding that

"the written contract carefully provides that any additions to or deviations from the plans or specifications shall be directed in writing by the committee or architect, and that 'it is expressly agreed that no alterations or additions are to be paid for unless so directed in writing.' No evidence was offered of any waiver of this provision by the defendant, or of any authority in the architect to waive it. This clause was intended to protect the defendant against claims for extra work under alleged oral directions or contracts. If the evidence offered can be construed to show an oral promise by the architect, founded upon a sufficient consideration, to pay for the work sued for as extra work, it was made without authority, and is not binding upon the defendant." 8

The same rule has been applied, and vigorously, in New York State. In one instance, a building contract provided in the specifications that Kings Winsor cement should be used and the work carried out under the direction of a certain superintendent. Elsewhere in the specifications it was provided that the cement should be mixed "with equal parts good sharp and dry sand." There

8 Stuart v. Cambridge, 125 Mass. 102.

was also a provision that in the event that any dispute should arise respecting the true construction of the specifications, the matter should be decided by the architect, "whose decision shall be final and conclusive." The plaintiff, a subcontractor for the plastering work, filed a mechanic's lien for his services and materials, and brought an action to foreclose the same.

On the trial of the action, it appeared that the cement mixture used was two parts sand and one part cement. The plaintiff testified that the variation from the specifications in the preparation of the mixture was in accordance with the direction of the superintendent. A letter was also introduced which the architect had written to the plaintiff, in which he stated that the plaintiff was not doing the work in accordance with the contract and was not following the instructions of the superintendent, and in which he directed him to follow those instructions "to the letter." The Court below dismissed plaintiff's complaint and the Court of Appeals by Chief Justice Andrews affirmed the judgment below in the following language:

"There is some evidence tending to show that the variation from the specifications in the proportions of sand and cement was directed by the superintendent of King & Company, but it is plain that the provision that the plastering should be done under the direction of the superintendent of King & Company had relation to the manner of applying the plaster, and gave him no author

ity to change the component parts of the mixture specifically prescribed. . . . It is difficult to see how a letter complaining of the work as not complying with the contract could be construed as an authority to follow the instructions of the superintendent of King & Co., in respect of a matter fixed by the specifications and a departure from which in reducing the proportion of cement would not be of advantage to the owner of the building." 9

In another New York case the plaintiff brought action to recover for work done and materials furnished in a building constructed by the defendants, under the direction of their architects. The question arose whether the architects had made, or had in any case a right to make, with the plaintiff, a new contract relative to the work and binding upon the defendants. It appeared that the architects were employed by the defendants to prepare the plans and specifications, to secure estimates, and to superintend the erection of the building.

The Court held that "the employment as architects to superintend the building and see that the persons with whom the defendants had contracted performed their contracts would not give the architects authority to make new contracts." 10

§ II. Other Limitations on General Agency.— In the absence of provisions giving to him specific authority so to do, the architect can not employ a new contractor to do work already undertaken by

9 Fitzgerald v. Moran et al., Co. V. The First National 141 N. Y. 419. Bank, et al., 54 N. Y. Super. Court, 511.

10 The Fireproof Building

the contractor originally chosen,11 nor can he substitute, either as respects the performance of the work or the payment therefor, a subcontractor for the principal contractor, nor does the mere fact that the owner happens to see the work being done by the subcontractor serve to make the owner liable. In the absence of special circumstances it will be presumed that the owner has the right to suppose that the work is being done for the principal contractor.12

13

So, in the case of a public corporation at least, certificates cannot be given to subcontractors,1 and neither certificates nor orders issued must vary from the form specified in the contract,—if a form be specified. 14 Similarly, when the architect is, either orally or by the terms of the written contract, given authority to certify extras and authorize alterations, the client will not be held liable unless the architect complies with, and keeps strictly within, the terms of the authority conferred.15

Just as the architect has no right in the absence of express authority to order extras or alterations, so too, in the absence of such express au

11 Campbell v. Day, 90 Ill. 363.

12 Campbell v. Day, 90 Ill. 363; Bouton v. Supervisors of McDonough County, 84 Ill. 384, -but note that this is a case of public rather than of private agency.

13 Bouton V. McDonough County, 84 Ill. 384.

14 Mills v. Weeks, 21 Ill. 561. 15 Ahern v. Boyce, 19 Mo. App. 552; Woodruff v. Rochester, etc., R. Co., 108 N. Y. 39; Commune de Calombier. Saugnieu v. Duchez et Savoye. Dalloz Jurisprudence Générale, 1883, part 3, p. 92.