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In a case where the architect and owner enter into a definite contract covering the amount of the compensation to be paid, and the contract is performed by the architect and the building is completed in the ordinary course and without differences arising, there will be little room for any complications in regard to the architect's fee.

But when the cases are reached wherein no definite contract is made, and preliminary sketches are prepared with no statements made and nothing said in regard to the matter of compensation; or where special conditions regarding the character of the building or its cost are stipulated by the owner as terms of the contract; or where plans are submitted in competition; or where, after ordering the preparation of sketches and plans and specifications, the owner for one reason or another decides not to proceed with the contract, very different situations are presented -situations which in their very nature make it quite possible, and indeed probable, that differences of opinion will arise, as to whether any fees are payable and, if so, to what extent they are payable and in what amounts.

§ 22. Recovery in Absence of Special Conditions or Agreement.-An architect is no more an eleemosynary institution than any other professional or business man. In general, and in the absence of such other circumstances or conditions as are noted hereafter, where a client requests an architect to prepare and furnish plans and the latter does so, he is entitled to be paid for his

services.1 Unless at the time the order for the plans is given and the work on them is done it is agreed, directly or impliedly from what is said, that they are submitted on approval or on conditions specified as to their acceptance, the client, by requesting their preparation and by receiving them, incurs a liability to pay for such of them as may be completed before the order is countermanded, and this entirely irrespective of whether the plans are ultimately used or not.2

§ 23. Effect of Specified Conditions.-Where the owner gives to the architect specific directions, in regard to the character of the plans desired, the architect cannot recover unless the plans are made in accordance with the directions received.3 The architect will at once imperil his right to recover for his services if he disregards any conditions which the client may have specified, in regard to the work to be done, or as terms of the contract between them.

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The owner may properly specify the conditions on which the architect is to be paid. may stipulate that no compensation shall be due

1 Smithmeyer v. U. S., 25 Ct. Cl. 481, judgment affirmed 147 U. S. 342; Maas v. Hernandez, 48 La. Ann. 264, 19 So. 269; Canfield (New England Monument Co.) v. Johnson et al., 144 Pa. St. 61, 22 Atl. 974.

2 Pierce v. Thurston, 40 App. Div. (N. Y.) 577, reversing court below; Nelson V. Spooner, 2 F. & F. 613; Kutts v. Pelby, 20 Pick. (Mass.)

65; Marcotte v. Beaupre, 15 Minn, 152; Driscoll v. Independent School District, 61 Iowa 426; Emerson v. Kneezel (Texas), 62 S. W. 551; Houston V. Glover (Texas), 40 Texas Civil App. 177.

8 Smith v. Dickey, 74 Texas 61, 11 S. W. 1049.

4 Hunter v. Vicario, 146 N. Y. A. D., 93.

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the architect unless the owner decides to go ahead with the work in accordance with the plans to be submitted, or unless, apparently, the plans are satisfactory to and approved by the owner; or unless the owner succeeds in acquiring the property in connection with which he proposes to use the plans; or unless the plans are made "under the direction and to the satisfaction of" the owner.8

In the case last cited, the architect prepared plans without making an inquiry as to the amount the client wished to spend. The court held that the client could, under the agreement in that case, reject the plans on the ground that they called for too expensive a building, but that they could not be properly rejected on the grounds that the current building prices were unreasonable and that the work should be postponed in consequence.

§ 24. Conditions Re Cost.-There is no point perhaps in the question of compensation which should be approached more carefully by the architect, or which will more often be taken advantage of to prevent recovery by him for his services, than the question of the cost of the building to be erected.

It is entirely natural that the intending builder, when he first interviews the architect, should mention the probable cost which he has in mind.

Geddis v. Greene County,

20 Ind. App. 274.

6 Rousseau v. Cohn, 20 Cal. App. 469.

7 Link v. Westerman, 80 Mo. App. 592.

8 Cann v.

Church of Redeemer, III Mo. App. 164.

It is natural too that the architect, in conferring with him, should make to him some statement, more or less definite, regarding the amount which a building of the character described by the client will probably cost. Any statements by the architect, or conversations between him and the owner, which can be construed either as an implied or express condition or warranty that the building can or shall be erected for a certain sum, or which can be construed as an estimate on the part of the architect of the probable cost of the building, may be fatal to his right to recover for his services, if the client sees fit to take advantage of the situation.

In all probability the condition most frequently specified by the owner is that the plans are to cover a building which shall not exceed in cost a definite specified maximum. Where such a condition is prescribed, or where as a result of what has passed between the architect and the owner, the understanding can be said to be that the cost of construction shall not exceed a certain sum, or that the plans are accepted on condition that it shall not exceed such sum, no compensation can be recovered for the plans or for their preparation in the event that, as finally submitted, they cover a building exceeding in cost the stipulated maximum amount. Again, 9 Horgan v. New York, 114 N. Y. A. D. 555; Bernstein v. N. Y. 143 A. D. 543; Walsh v. St. Louis, etc., Assn., 10r Mo. 534; Ada St. Methodist Epis

copal Church v. Garnsey, 66 Ill. 132; Maak v. Schneider, 57 Mo. App. 431; Emerson v. Kneezel, 62 S. W. (Tex. Civ. App. Dec. 1900) 551; Mac

if the architect submit estimates of the probable cost of the building, he cannot recover his fee for the plans prepared unless the cost of the building is reasonably close to the estimates submitted.10

§ 25. Limitation of Rule.-Under these circumstances, however, where the architect gives merely the probable cost of the building, the mere fact that the cost exceeds slightly the estimate which he has made will not in itself defeat his recovery. It is the province of the jury to determine whether the estimate submitted by the architect is reasonably near the actual cost of the building, and the architect has a right to have this question submitted to the jury for determination.11 If, also, the architect upon finding that the cost of

Donnell v. Dreyfous (La.), 81 So. 383; De Hoff v. Scott, 69 Penn. Super 9; Headlund v. Daniels (Utah), 167 Pac. 1170; Wilson v. Ward, 14 British Col. 131; Smith v. Dickey, 74 Tex. 61, 11 S. W. 1049; Feltham v. Sharp, 99 Ga. 260, 25 S. E. 619; Graham v. BellIrving, 46 Wash. 607; but see Diball v. Grunewald, 7 La. App. (Orleans), 59, to effect that such an agreement must be clearly shown where the character and nature of the building are in the discretion of the client.

10 Moneypenny v. Hartland, C. & P. (Carrington & Payne, 352, 2 C. & P. 378; Nel

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son v. Spooner, 2 F. & F. Foster & Finlanson) 613; Smith v. Dickey, 74 Tex. 61, supra.

11 Nelson v. Spooner, 2 F. & F. (Foster & Finlanson) 613. But see Williar v. Nagle, 109 Maryland, 75, holding that if the cost greatly exceeds the estimate the court can hold, as a matter of law, that it is not sufficiently close to the estimate; and note also, that in determining whether work can be done for the estimated cost, the fees of the architect are not to be included as a part of such cost. Smith V. Dickey, 74

Texas 61.

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