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thority, he has no right to allow the contractor to vary the terms of the contract either as respects materials or construction, or as to any of its substantial details or provisions, nor to allow any detail of construction or material to remain which is contrary to the contract terms and provisions.18

It has been held also that the architect has no general authority to exercise a supervision over the letting of subcontracts or the employment of workmen, nor yet to receive a notice of the assignment of the building contract so as to bind the

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§ 12. Special Agency-To Be Carefully Exercised. It must be understood that all of the limitations on the powers and authority of the architect, referred to, are limitations upon his powers and authority under his general agency, and that if, orally or in writing, he be authorized to exercise a special authority, or be appointed broadly the general agent of his employer as to all matters

16 Glacius et al. v. Black, 50 N. Y. 145; Bonesteel v. The Mayor, etc., of N. Y., 22 N. Y. 162; Burke v. City of Kansas, 34 Mo. App. 570; Starkweather v. Goodman, 48 Conn. 101; Stuart v. City of Cambridge, 125 Mass. 102; Cooper V. Langdon, 9 M. & W. (Messon & Welsby), 60; Bond v. The Mayor, etc., 19 N. J. Eq. 376; Clark on Architects, p. 87; Wagner Co. v. Cawker, 112 Wis. 532; Hudson, Building

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relating to the contract or building, his authority will be enlarged accordingly. Thus, for instance, he may be given, specifically, full discretion and authority to pass upon and order extras or alterations, or accept work of a different character than that specified, or to change contractors, or to vary the terms of the contract between his employer and the contractor in such details as he may think best. If he be given such special discretion and authority, he will be justified in exercising it accordingly.

The architect cannot, however, be too careful to ascertain before he acts the exact extent and scope of his authority; it often happens that provisions delegating to him special authority, and which he may consider justify him in assuming certain authority, are legally to be construed as so limited by the other general conditions of the contract, or by the rules of agency, as to make his actual authority and discretion much less than he supposes it to be.

Thus a provision giving to the architect the power to make changes in plans or specifications, has been held not to contemplate or authorize any radical changes therein, but only such incidental changes as may fairly be considered to be necessary to complete the work in accordance with the general intentions of the parties. And where a contract provided that a dam to be constructed was "to be built of masonry" and then provided that the engineer in charge could "make alterations in the line, grade, plans, form, position,

dimensions, or materials," it was held that the authority was insufficient to authorize the engineer to change the dam from one of masonry to an earthen dam with a masonry core.

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So also, the grant to the architect of the right to define and construe the meaning of the plans and specifications does not, it has been held, confer upon him the right to decide what is within and what without the contract.20

§ 13. Estoppel of Owner.-It must not be supposed that the owner can, under any and all circumstances, when the architect has exceeded the limits of his agency powers, escape responsibility if by his conduct he has impliedly ratified his agent's acts, or so acted himself as to cause others reasonably to suppose that the acts of the agent were with his approval, and so estopped himself from claiming, certainly as to third parties, that the acts were in reality without his sanction or authority. So, where alterations are ordered by the architect in the presence of the owner, who does not then demur or question them, the authority of the architect to order such alterations is presumed, and this even if in the contract it be provided that any orders for alterations must be in writing.21

Similarly, if the architect, during the progress of the work, has made repeated changes in the

19 The National Contracting Co. v. Hudson River Water Power Co., 192 N. Y. 209.

20 Tomlinson V. County (Wis.) 173, N. W. 300.

21 Perry v. Levenson, 82 N. Y. A. D. 94; affirmed, without opinion, 178 N. Y. 559.

plans which the owner has ratified and approved, and the architect makes further extensive changes and alterations, the contractor is justified, by the actions of the owner, in depending on the architect's authority as to these final changes and alterations. The owner, who has received the benefit thereof, cannot successfully defend an action by the contractor, on the ground that the architect has exceeded his authority.22 Where the architect purchases materials for the building on the credit of the owner, and with the latter's knowledge of the action taken, the purchase may be considered as having been ratified by the owner.2

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The architect in his capacity as superintendent, may be considered the agent of the owner within the scope of his authority, but he is the agent of the owner for the purposes only of the contract in connection with which he is employed.25

§ 14. Delegation of Powers-The General Rule. As in the case of an attorney or special trustee, so in the case of an architect, his employment is based upon personal trust, and upon confidence in his honesty, ability and skill. He cannot

22 Jackson Architectural Iron Works v. Rouss, 39 St. Rep. 359, 15 N. Y. Supp. 137-judgment affirmed without opinion, 133 N. Y. 538.

23 Crockett v. Chattahoochee Brick Co., 95 Georgia, 540. 24 Vanderhoof v. Shell, 42

Oregon 578; Brin V. McGregor (Tex. Civ. App. 1898) 45 S. W. 923; Kilgore v. Northwest Texas Baptist Educational Society, 89 Tex. 465. 25 Richard v. Clark, 43 Misc. (N. Y.) 622.

therefore, without express authority or permission so to do, delegate his authority to another.26 This is in accordance with the old agency maxims of delegatus non potest delegare and delegata potestas non potest delegare. In one State at least these have been so strictly applied as to forbid the architect from delegating his authority as arbitrator to his partner without the consent of his employers.27

§ 15. Limitation of Rule.-When a firm is employed, as a firm, and dependence is not placed specially upon one member of the firm, the foregoing rule would not apply, and where an architect's partner has been in charge of the work and has been recognized by both the owner and the contractor as being so in charge, he can by signing an arbitration provided for in the contract bind both parties, although his individual name does not appear in the firm title and is not mentioned in the contract.28 In any event if the parties mutually consent there can be no objection to the architect delegating his authority to another, and, of course, the parties themselves may waive conditions in the contract which, without express authority, the architect could not waive.20

26 Johnson & Burns Inc. v. Hayden (Conn.), 119 Atl. 50; Monahan v. Fitzgerald, 164 Ill. 525.

27 Wright v. Meyer (Tex. Civ. App. 1894), 25 S. W. Rep.

II22.

28 Wymard v. Deeds, 21 Pa. Super. Ct. 332.

29 Smith v. Molleson, 148 N. Y. 241; Wagner Co. v. Cawker, 112 Wis. 532; Bannister V. Patty's Exec's 35 Wis. 215; McPherson v. Rockwell, 37

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