Imagens das páginas
PDF
ePub

practicable, order as an extra the work necessary to make them practicable.39

§ 19. General Precautionary Suggestions.— There is but one way in which the architect can properly protect himself from the danger of incurring personal liability under one or another phase of his position as the agent of his client and that is to exercise the utmost care not to exceed the express or implied authority which he knows himself to possess; not to act on any point where there is the slightest doubt of his full authority to act, without securing that authority; to take nothing for granted, but to be guided by the contract and by the authority which, orally or in writing, he has received; to refuse to take the chance that the owner will ratify what has been done, where it is possible to in any way communicate with the owner and secure his approval and assent; and, wherever a point of ambiguity or uncertainty arises, to ascertain, before acting, just what construction, legally, is to be placed upon the provisions by which his authority and liability are specified, governed and determined.

It may well be that, as a practical matter, in many cases, a quick decision will be necessary and that it will be impossible to secure the approval of the client in advance. So far as possible, however, nothing should be taken for granted or assumed on the point of agency if the architect would avoid complications and personal loss. If

39 A. M. Brice, "The Legal Authority of the Architect as an Agent."

the contract or understanding under which he is acting does not clearly confer upon him such authority, express or implied, as a particular development may necessitate, let him, before acting, secure that authority if this be a possibility, in writing if practicable, if not, orally, in person or by telephone, in some form in any event. Only by doing this will he be protected, and only thus will he avoid the danger of suffering sooner or later, and, in all likelihood sooner rather than later, a loss which will more than counterbalance any advantages which he may have secured by taking chances in the past and by trusting merely to the sense of fairness of those employing him to save him harmless.

And let him always, under any circumstances, be very critical of any authority which is by implication rather than express, even though the implication seem to his mind entirely clear and inevitable.

CHAPTER III

THE COMPENSATION OF THE

ARCHITECT

§ 20. Introductory.-The right of the architect to receive compensation for his work is naturally a matter of prime importance to him. If he is to be in a position to properly protect his rights in this connection, and at the same time avoid unnecessary and expensive misunderstanding and possible litigation, he should understand the theory upon which his right to compensation is based and the circumstances under which he may or may not rightfully demand and recover compensation for services rendered.

Matters which, to the lay mind, may seem of little or no importance may, in fact, prove to be determining factors in deciding whether or not the claim of the architect for compensation is valid and enforcible. A very few words or a very simple writing at the proper time may make his right to compensation entirely clear. A Failure to speak the words or to secure the writing may mean that, after his work has been done, some technical or other objection may be successfully urged as a bar to his recovery.

It is no less desirable that the owner shall un

derstand the terms and effect of his contract with the architect, and the rules governing his own liability to reimburse the latter for services rendered.

§ 21. Theory of Recovery-Contract and Quantum Meruit.-The recovery by an architect for services rendered may be based either upon the theory of direct contract or upon the theory of what is known in the law as quantum meruit. If based upon the contract the recovery is for the specified amount which, by the terms of the contract, the owner has agreed to pay the architect as his fee. If based upon quantum meruit the recovery is not upon the theory of a definite contract price, but for the reasonable value of the work done and services rendered.

In the ordinary case of a suit for goods sold and delivered, for instance, the recovery may be for a certain number of yards of goods at an agreed price, of, say, one dollar a yard, or, if no price has been agreed upon, and the goods have been delivered and accepted by the defendant, the recovery may be for the reasonable value of the goods delivered, which may be a dollar a yard, or more or less. So, in the case of personal services rendered, if a definite commission or rate of compensation has been agreed upon, the recovery will be in accordance with the commission and rate thus established. If there has been no such definite agreement the recovery will be for such amount as will represent the reasonable value of the services rendered.

It will be seen that there is a vast difference between these two theories of recovery. In the case of a definite contract the architect need not prove that the services are reasonably worth the amount claimed-all that he need prove is that the client agreed to pay him a certain sum in compensation for his services, that the services have been performed and that the agreed compensation has not been paid and is due accordingly. If he cannot prove such definite agreement then it is that he must fall back upon the quantum meruit count and ask compensation for the reasonable value of his services. If there has been a definite contract the fee agreed upon is, of course, just as controlling upon one of the parties as upon the other. The architect, if he agree to serve for an agreed compensation cannot claim more, on the theory that the services are worth more, and, disregarding the existence of the contract, elect to recover on quantum meruit instead. Similarly, the client cannot, under these circumstances, pay less than the amount agreed, where the services have been duly performed in accordance with the terms of the contract. If there be no contract a recovery may be had for the full reasonable value of the services rendered irrespective-except in so far as this may be considered in determining the reasonable value-of whether their value is more or less than the amount which the architect might have been willing to accept, if a definite agreement had been entered into.

« AnteriorContinuar »