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the building, if erected in accordance with the plans prepared and submitted, will exceed the amount stipulated by the owner as the maximum amount which the building is to cost, or will exceed the cost as given in his estimate, submits suggestions as the result of which and by following which the work can be properly done at a less cost, and at a cost meeting and consistent with the requirement as to the stipulated maximum cost or the estimate submitted, he will be entitled to his compensation.

In a leading case on this last point, decided in Iowa, the architect, in consideration of a three per cent. commission, agreed to furnish preliminary sketches and complete working drawings and specifications, to superintend the building operations and to make settlement of all accounts. He prepared the plans and specifications, and was proceeding to carry out the other provisions of his agreement, when the owner announced his decision not to proceed with the building. It appeared that the parties contemplated a building to cost not more than $10,000, and that the plans and specifications as originally prepared entailed an expense in excess of $16,000. Subsequently, finding that the cost would reach this sum and thus exceed the $10,000 contemplated, the architect suggested certain changes which would bring the cost within the contemplated $10,000 limit. The drawings were then accepted by the owner. The Court held that the architect could recover

for his services in preparing the plans and specifications and that the fact that the drawings, as at first prepared, called for a $16,000 building was, under the circumstances, no bar to the right of recovery.

It should be noted that in the foregoing case there was a direct acceptance of the plans by the owner, which of course strengthened the position of the architect. The doctrine, as laid down, is nevertheless clear, that an architect by suggesting changes whereby the cost is reduced within the amount specified may place himself in a position where the owner cannot rightfully refuse payment on the ground that the cost exceeds the amount specified or estimated.12

Of course, such suggestions for modifications, whereby a reduction in cost is to be effected, must be made in practical form, in good faith, and with reasonable promptness. They will not have the same favorable effect, from the standpoint of the interests of the architect, if made tardily or after the claim has been pressed and a recovery for services sought.

In the event that the fact that the cost exceeds, in a given case, the stipulated maximum, is due to the interference of those by whom the architect is employed, and the endeavor of the latter in good faith to meet their demands in regard to the building these demands necessitating a more costly building than contemplated—and a building of no

12 Marquis v. Lauretson (Iowa Sup. Ct. 1888), 40 N.

particular character is specified, the architect may recover. 13

It is to be noted also that the Canadian Courts have held that where the architect submits, with his preliminary plans the estimates of reliable contractors of the probable cost of the work and is ordered to prepare plans and specifications, he is not barred from recovering his fee by the fact that the lowest bid then received is far in excess of the preliminary estimates; 14 and that the Courts in some of our states have held that a substantial compliance by the architect, with the contract with respect to estimated cost, is sufficient,15 and that he is entitled to his compensation if it be shown that the actual cost is reasonably close to the estimated amount.

§ 26. Necessity of Delivery.-In order to entitle the architect to recover for the plans prepared it must be shown that they have been delivered, or that the delivery of them has been prevented or waived by the owner. Mere preparation of them in the office of the architect, if they are not delivered to the client who has ordered them or in accordance with his directions, will not ordinarily charge him with any liability to make payment for them, inasmuch as he has not received any benefit from their preparation.17

13 Coombs v. Beede, 89 Me. 187, 36 Atlantic 104.

14 Munro v. Yorktown etc. Assoc. 5 Dom. Law Review. 15 Vaky v. Phelps (Texas) 194, S. W., 601.

16 Diball

V. Grunewald, 7

La. App. Orleans Parish, 59. 17 Kutts v. Pelby, 20 Pick. (Mass.) 65; Wandelt v. Cohen, 15 Misc. (N. Y.) 90; Hill v. Sheffield, 117 N. Y. Supp. 99; Resher v. Frères des Ecoles Chrétiennes, 34 L. C. Jur. 89.

Where an architect was directed to prepare plans for a theater, and he accordingly prepared a sketch and delivered it to the defendant, and the defendant kept it for a week and expressed his approval of it and told the architect to make the plans, and went so far as to have his builder call on the architect at the owner's request and take the plans and make and deliver to the owner an estimate based upon them, the plans were held to have been clearly delivered and the architect's right to recover for the value of his services was sustained.18

So too when an architect gave a copy of the plans to the contractors, and kept one in the office, believing that his client had a copy, and, on the refusal of the client to proceed and having no reason to offer the plans to him, advised him that he could have the plans and specifications whenever he wished to proceed, the architect was held to have made a good and sufficient tender." And blueprints furnished by the architect, in contradistinction to the original drawings will be construed to be plans, within the meaning of a contract requiring the architect to furnish plans.20

All the elements necessary to allow a recovery are present in a case where, while there was not a specific contract, the plans were prepared by the architect at the request of the defendant and there

18 Kutts v. Pelby, 20 Pick. (37) Mass. 65, supra.

19 Graf v. Laev, 120 Wis.

20 School District v. Fisher, 61 Neb. 3.

were no special conditions upon which the defendant stipulated that payment should be made. Having taken the plans and caused the architect to perform the services in question, at his request, he can not then refuse to pay for them, and this, entirely irrespective of whether they were used by him or not.

§ 27. Delivery and Acceptance Distinguished.— A delivery to, or the receipt by, the owner of the plans, however, must not be confused with an acceptance. It is quite possible even if they are properly prepared and delivered, that the owner may, on some pretext or another, or for some reason valid or invalid as the case may be, refuse to accept them. If the work has been properly done, and the architect has complied with his agreement, the refusal by the owner to accept will not relieve him from liability and the acceptance is not, therefore, under such circumstances, necessary to complete the right of the architect to receive compensation for his services. 21 But in the event of special conditions in the agreement, or of special circumstances under which the plans are submitted, acceptance may become of prime importance. Where, for instance, plans are submitted on approval, or are submitted in competition with plans prepared by others and on the understanding that the plans which are accepted are to be the ones for which payment will be made, no recovery can be had if the plans are not accepted.

21 Canfield (New England Monument Co.) v. Johnson et al., 144 Pa. State 61, 22 Atlantic 974.

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