§33. Rescission of Contract by Owner-Preliminary Sketches.-Another situation of special interest to the architect as affecting his right to compensation, and one which arises with comparative frequency, is that which is presented when the owner, after the services agreed upon have been in part performed, rescinds the contract, or expresses his determination to proceed no further with the work. If his determination not to proceed with the building is based upon the fact that it has been agreed that the building shall not cost more than a certain sum, and that the estimates show that the limit will be exceeded, the architect, as has been seen, will, if this be true, have no remedy. But where some such element is not introduced, the architect will have the right to recover for the services which he has rendered, together with damages in an amount sufficient to justly compensate him for such injury as he has sustained by reason of the breach of contract on the part of the owner. Where, therefore, a client requests an architect to proceed and prepare sketches and the architect. does so and delivers the sketches, and the client then notifies him that he has changed his mind

Osterling v. Bank (Pennsylvania); 105 Atlantic 633, holding that architect can not recover for revised drawings made necessary by changes in the plans, where his compensation is a percentage of the total cost of the building and

where he agreed to furnish all necessary plans, nor extra compensation for acting as arbitrator, where his contract provided that he should perform the usual and customary services including the settling of disputes.

and does not care to proceed, the client cannot, by such notification, escape his liability to make payment for the sketches prepared, as the notice serves only to prevent the preparation of additional plans.

§ 34. Illustration of General Rule.—This general rule has been clearly stated by the Appellate Division of the New York Supreme Court, which, reversing a judgment in the court below in favor of the owner, has held specifically that, under circumstances such as those stated, the architect has a definite right to recover for the preliminary sketches prepared.38 The Court said:

“The plaintiff did not claim to recover for completed plans and drawings, but only for preliminary sketches, and we are inclined to think that, on the evidence introduced, in the jury would have been authorized to determine that the preliminary sketches, which were shown to the defendant at the time he claimed to have rescinded the contract, were completed, and that the only effect of his countermand, at the time in question, was to prevent the plaintiff from going further and making complete plans and drawings. .

"It is true that the defendant could at any time countermand his order for preliminary sketches (Clark v. Marsiglia, I Den. 317; Lord v. Thomas, 64 N. Y. 107, 109, 110), and that the plaintiff could not recover for work done thereon after such countermand. But the evidence introduced on the trial was such as to authorize a finding by the jury that the plaintiff was employed by the defendant to make the preliminary drawings in question, and that he commenced at once and completed them. The defense interposed by the defendant, that he counter28 Pierce v. Thurston, 40 A. D. (N. Y.) 577.

manded the order on the Monday following the day that it was given, was an affirmative one. A countermand did not defeat the plaintiff's recovery unless given before the work was completed. It was for the defendant to show an effectual countermand-one given before the drawings were finished. This he failed to do. The burden was upon the defendant, asserting as an affirmative defense to the plaintiff's claim a rescission of the contract under which the plaintiff claimed, to show that such rescission was made before the work which was shown by the plaintiff to have been done by him was finished."

835. Cannot Compel Client to Complete.-In some instances where one who has employed others to perform certain services has notified them of his desire that no further services be performed prior to the completion of the services contracted for, attempts have been made to compel him to permit the work to be completed. It has been definitely determined, however, that, while a recovery may be had for the breach of the contract, the employer cannot be compelled to proceed with the completion of work which he has decided he does not care to undertake, and that the architect cannot persist in proceeding further under such conditions.39 Similarly, where a contractor has sought to compel the State to proceed with the erection of a public building, which he has been constructing under contract with the State, the specific performance of the contract on the part of the State will not be enforced, and a

39 Clark v. Marsiglia, 1 Denio (N. Y.) 317; Lord v. Thomas, 64 N. Y. 107.

State statute, although involving a breach of the contract between the State and the contractor, will not, for this reason, be objectionable on the ground of unconstitutionality.40

§ 36. Measure of Damages on Refusal to Complete. As to the measure of damages in a case where the defendant by requiring the plaintiff to stop work violated his contract and thus became liable for the resultant damages to the plaintiff, such damages "would include a recompense for the labor done and materials used and such further sum in damages as might upon legal principles be assessed for the breach of the contract, but the plaintiff had no right by obstinately proceeding in the work to make the penalty upon the defendant greater than it would otherwise have been." 41

Where an architect prepares plans for a building which is never constructed and thereafter prepares plans at the request of the same client

40 Lord v. Thomas, 64 N. Y. 107.

41 Clark v. Marsiglia, 1 Denio (N. Y.) 317; and see: Havens v. Donahue, III Cal. 297, holding that the owner cannot reduce the architect's fee by terminating his employment before the completion of the work; and, Johnson & Burns Inc. v. Hayden (Com.), 119 Atl. 50, holding that where the owner prevents the architect from completing his services, the damages will not be limited to

the value of the architect's services as of the date of the breach by the owner, but will include the profit which the architect would have made had he been allowed to perform his contract; but see, Orth v. Board of Education (Penn.), 116 Atl. 366, to effect that owner may by contract reserve the right to terminate and in such event, to pay only the proportion of the architect's compensation which has then accrued.

for another building, but is discharged while the work is in progress and before it is completed, the two sets of plans will be regarded as distinct and as applying to two different buildings, and the architect will be entitled to recover the proportionate percentage of his fee representing his services in each case."

42

Where an agreed percentage for the architect's services in preparing the plans is agreed upon and based on the estimated contract price and a similar percentage is agreed upon for his services in supervising the work and he prepares the plans, but some of the buildings covered by them are not constructed, he is entitled to the agreed compensation for his services in connection with the plans and to his agreed percentage on the actual cost of the buildings which have been constructed. 43

In this connection, it is well to remember that the contract will control, however, in each case, and that it may be so worded, that he may be entitled to a full commission on the estimated cost of the building, irrespective of whether the same is erected. It has been held, however, that he may not recover for plans covering a building which can not be erected without the violation of a municipal ordinance, but that he can recover for incomplete plans discarded by the owner be43 Spencer v. N. Y., 179, A. D. 69.

42 Hand v. Agen, 96 Wis. 493, and see also Shipman v. State, 42 Wis. 377.