Acceptance under these circumstances, is a condition precedent to the right of the architect to recover.22 So also, acceptance is necessary where it is agreed that the architect shall perform the work under the direction of the owner and to the latter's satisfaction.23

In the case, too, where an architect solicits the work of superintending the building and, of his own initiative and not at the request of the owner, leaves sketches with the latter in the hope that his doing so may result in his securing the employment sought, and the owner returns the sketches and neither accepts them nor makes use of them, no recovery for them can be had. 24 This is on the theory that the services were not rendered at the request of, or sought by, the owner, but were purely voluntary and at the instance of the architect alone, and for the purpose of inducing the owner to employ him to superintend the work.

If the owner were to keep the sketches or make use of them, even though he had not sought the services of the architect in the first instance, and even though the services had not been performed at the request of the owner, payment for the sketches could be demanded for the reason that, having received the benefit of them, and retained and so accepted them, the owner could not refuse

22 Audsley v. The Mayor, 74 Federal 274; Allen v. Bowman, 7 Mo. App. 29; Walbank v. Protestant Hospital, 7 Montreal Q. B. 166.

23 Cann v. Church of Redeemer, III Mo. App. 164. 24 Allen v. Bowman, 7 Mo. App. 29.

to reasonably compensate the architect for the services involved.

§ 28. Necessity of Actual Contract-Custom Alone Insufficient to Sustain Recovery.-In the event that no contract of any character-no meeting of their minds-either in express terms or by implication, can be established between the owner and the architect, no amount of custom or usage can place upon the owner a liability to pay for services rendered. The evidence of custom or usage may be competent either as tending to show an implied agreement to pay a reasonable compensation, or, if no such implied agreement be shown, competent upon the question of what a reasonable compensation under the circumstances would be; but unless, in some way, an agreement by the owner, express or implied, can be deduced from the circumstances under which the services are rendered, such custom or usage can, as binding him, have no force or effect whatsoever.

§ 29. Illustration of Rule.-A rather famous case in which this doctrine is enunciated and in which Mr. Melville W. Fuller, afterward Chief Justice of the United States, appeared as counsel for the plaintiff, was decided by the Supreme Court of the United States in October, 1880.25 In that case, the County of Cooke and the City of Chicago, proposing to erect a building to combine a new court-house and city-hall, to be used and paid for respectively by the county and by the city, offered a premium for plans. The plaintiff 25 Tilley v. County of Cooke, 103 U. S. 155.

furnished a plan accordingly and received the compensation promised.

No additional contract between the parties was entered into. The city and county each adopted a resolution formally selecting the plan of the plaintiff, subject to such modifications as might thereafter be determined upon in the event that the plaintiff's estimate of the cost of construction should be verified. The plaintiff testified that thereafter he had verified the cost of the construction in the customary and usual way, and produced his plans and offered to prove their value and the time employed and the expense incurred in the preparation of them. This evidence the Court excluded. The plaintiff further offered to prove that, by the usage and custom of architects, in the absence of a special contract, the superintendence of the construction of a building should be given to the architect whose plans were adopted. The Court likewise refused to allow him to submit evidence on this point. He then offered to prove that in accordance with the custom and usage of architects, in cases where prizes for plans submitted as his had been were offered, the plans were the property of the successful competitors and belonged to them, and if they were subsequently adopted as the plans in accordance with which the building should be constructed, were always paid for, independently of the special prize itself. This evidence likewise was excluded, as was also his evidence offered

to establish the value of services in verifying the cost of the proposed building, according to his plans. The Court below thereupon directed a verdict for the defendants and the case came before the Supreme Court by writ of error from that judgment.

It did not appear that the plans of the plaintiff were used by either one of the defendants or that the building in connection with which they were prepared was ever erected. In substance, the plaintiff's claim was that, by virtue of the adoption of the resolution by the city council and county board, the city and the council were bound, without any further act on the part of the plaintiff, or further assent on his part, to proceed and erect the building in accordance with his plans and the estimated cost.

It did not appear that the services of the plaintiff, in verifying the cost of the proposed building in accordance with his plans, were rendered at the instance or request of the defendants or either of them, and hence a statement of facts was not shown as a result of which the law would imply a contract to pay for these services. The Supreme Court held that:

"In this case, there being only an expression of purpose by one party to erect a building according to plans antecedently made by another and no obligation entered into by the other party, and no plans used or building erected there was no contract between the parties either express or implied. . . . Proof of usage can only be received to

show the intention or understanding of the parties in the absence of a special agreement or to explain the terms of a written contract

.26

"In all cases where evidence of usage is received, the rule must be taken with this qualification, that the evidence be not repugnant to or inconsistent with the contract . . .2

27

"The inference from these principles is inevitable, that, unless some contract is shown, evidence of usage or custom is immaterial.

"The offer of the plaintiff to prove certain facts having been rejected, he must be presumed to be able to prove what he offered to prove. We must, therefore, assume that the custom which he offered to prove did, in fact, exist. But what was that custom? Clearly, that if the building was erected according to the successful plans, the architect was entitled to pay therefor. That was such an acceptance and adoption of his plans as would give him. the right to compensation there for, and the right to superintend the erection of the building and receive the usual remuneration. The custom certainly did not bind the party who offered prizes for plans, after having paid the prizes, to pay also for plans that he never used, and for superintendence of a building that he never erected, merely because he had selected a particular plan and announced his purpose to build in accordance with it. If such were the custom and usage of architects in Chicago, it was an absurd and unreasonable custom, and therefore not binding . . .28

offered to show that after the

V.

"If the plaintiff had 26 Citing, Hutchinson Tatham, Law Rep. 8 C. P. 482; Field v. Lelean, 30 L. J. Ex. 168; Baywater v. Richardson, I Ad. & E. 508; Robinson v. U. S., 13 Wall 363.

27 Citing, Holding v. Pigott, 7 Bing. 465, 474; Clarke v.

Roystone, 13 M. & W. 752; Yeats v. Pim, Holt N. P. 95; Trueman v. Loder, II A. and E. 589; Bliven v. New England Screw Co., 23 How. 420. 28 Citing, United States v. Buchanan, 8 How. 83.