passage of the resolution by which his plan was accepted, the defendants had erected their building according to his plans, then the evidence of the custom would have been pertinent. But he made no such offer, and it is to be presumed no such fact existed. The evidence of this custom was, therefore, properly excluded.”

It is quite natural that variations of the ordinary problems in regard to compensation should arise in the practice of every architect, dependent on the special circumstances of each case. It is impossible to anticipate the exact state of facts which may in a special case be presented, but, whatever the situation may be, it will, in the vast majority of cases, be found to be governed by one or another of the broad general rules of determining the right of the architect to payment for his services and prescribing the circumstances under which that payment can properly be demanded. In every case the broad underlying principles will be found to be that, where a definite agreement has been made, a recovery can be had in accordance with it if the architect has performed his part of the agreement, and if no definite agreement has been made, a recovery can be had for the reasonable value of the plans providing the architect is not in default and that nothing has been said or done by the owner, or by the architect, which introduces into the situation a new or additional element, such as the submission or acceptance of the plans on approval, or on the understanding that the work covered by them shall not cost more than a certain sum specified.

§30. Competitions.-It has been already noted that where plans are submitted in competition on the understanding that payment is to be made only to the successful competitors, those who are unsuccessful can have no cause of action for their services; and also, that where they are submitted in competition, as in the Tilly case Supra, wherein the plans for the city-hall and county court-house at Chicago were concerned, on the understanding merely that a prize is to be awarded to the successful architect, but no further contract appears between the parties, the extent of the architect's claim is the prize specified. This situation, however, will be varied if other conditions are introduced into the contest. If, for instance, the plans are submitted in competition on the understanding that those meeting with the approval of the committee are to be selected as the plans for the building and that the architect submitting the successful plans shall be appointed the architect and the superintendent of its construction, the architect whose plans are, under such conditions, accepted in the competition, has a definite right to be employed as the architect of the building and as superintendent of its construction, and has a right of action for a refusal to so employ him.29

When, however, plans are selected but no formal decision or award is made, as called for

29 Walsh v. St. Louis Exposition, etc., Assn. 90 Mo. 459, affirming 16 Mo. App. 502.

under the terms of the competition, those who have requested that the plans be submitted are under no obligation to reimburse the architects for their services.30

Architects entered in a competition may not legally enter into an agreement the effect of which is to stifle competition. They may however, after they have actually submitted their competitive plans, agree that the successful architect will share his compensation with his unsuccessful competitors.31

§ 31. Proper Care and Skill Required.-Another question which may be of vital importance in determining the right of the architect to recover is the question whether, in his services rendered, he has exercised that proper care, skill and ability which, from his membership in his profession and his technical training, he is presumed to possess. If he allow the building to be erected in a manner which he knows or, from his training should know, to be improper, he cannot re

cover.

This rule would seem to apply where an architect, after a personal examination of the site suggested, has allowed a building to be erected thereon, when his training should have warned him that the site, on account of the poor composition of the soil or for other reasons, could not properly support the building or would be entirely 30 Audsley v. N. Y. 74 Fed.

274.

31 Flanders V. Wood. 83 Texas, 277.

unsuitable for the purposes proposed.32 The situation would be altered if the architect, after an examination of the site, warned the owner that, in his opinion, it was not suitable and the owner, with full knowledge of the facts thus brought to his attention, directed him nevertheless to proceed. Under these conditions the owner would be assuming the risk personally, and the facts would present a very different case from that which is presented where the architect, knowing the defect, keeps silent and allows the building to proceed, or is so negligent that he fails to detect the defect at all.

§ 32. Modification of Contract. It will sometimes happen that a contract specific in its terms as respects compensation will be modified by a new contract, in which no specific rate of compensation is agreed upon, and the new contract may, under such circumstances, take the place of the old. So, where a contract, definite in its terms as respects compensation, was entered into and was subsequently changed so as to make provision for plans of a more extensive character than those originally contemplated, but did not specify in its modified form any rate or amount of compensation, the architect was allowed to prove, on the theory of quantum meruit, the reasonable value of the plans prepared and of the additional services rendered by him.3

32 Moneypenny v. Hartland, I C. & P. (Carrington & Payne) 352, 2 C. & P. 378.

In this connection it

33 Marcotte v. Beaupre, 15 Minn. 152; but see: Osterling v. Trust Co., 260 Penn. 64,

must, however, be borne in mind that the law does not allow a written agreement to be varied by a parol agreement, and that an instrument, to be effective to modify another, must be executed with the same formality as the instrument which it attempts to modify.

If the owner direct that changes be made in the plans or in the building, after the contract for the work has been awarded, or during the progress of the work, and the architect performs additional services in revising the plans or in superintending the extra work, made necessary by the changes directed by the owner, he may recover for the value of his services in changing the plans, and in superintending the work done; 35 and it is not necessary, it seems, that he shall have given to the owner any notice that he expected additional compensation for such extra work.36

34

If an architect prepares the plans and specifications under an agreement to do so and to supervise the work for a stipulated sum, and the client, after accepting the plans and specifications so prepared, abandons the proposed building and orders new plans for a different building, the architect is entitled to recover for his extra services in preparing the second set of plans.37

holding that where extra work is done, the original rate of compensation will be presumed to continue, in the absence of a new agreement.

34 Johnson v. O'Neill et al., 148 N. W. (Mich. 1914) 364, and see Baker v. Publishing Co.

(Missouri 1903), 77 S. W. 585.

35 Smith v. Bruyere, 152 S. W. (Texas), 813; Shear v. Bruyere, 187 S. W. 243.

36 Smith v. Bruyere, supra. 37 Fitzgerald v. Walsh, 107 Wis. 92; but see, Espert v. Ahlschlager, 117 Ill. App. 484;