est, and to do no act which may hinder him in giving that disinterested and honest service which his relationship with his client demands, has already been referred to. It remains to consider the more specific duties and liabilities of the architect, such as the preparation of plans and specifications, the supervision of the work and the issuance of certificates.

It should be noted, preliminarily, that an architect is, in general, liable for want of care or skill in the execution of his work to his employer only, and is not liable to third persons for damages resulting from accidents or injuries sustained after the completion of the work. The legal distinction, in this connection, between a tort to a third person, predicated upon the omission of some act or obligation to the public as such, and a tort predicated upon a direct injury to a specific third person, has been well stated to be that, in the event that one "omits to do some duty or obligation which he owes to his employer and which is a tort to a third person, he is not liable, but when he commits a tort which is an injury to anyone, there is no reason why he should not be liable for his acts as anyone else."

The writer who so states the rule cites as examples thereof a case, on the one hand, of a superintendent of a plantation who neglected and refused to keep open a drain on his employer's land, thereby flooding the lands of the neigh

Mayor v. Cunliff, 2 N. Y. 165; Wait, Eng. & Arch. Jurisprudence, § 842.

bors and damaging them, and who was held not to be liable to the neighbors; and, on the other hand, the case of an architect in charge, who adopted a bad plan of construction, as the result of which, and by reason of his negligence, mis- \ feasance and failure to observe the skill and care imposed by law, a disaster resulted, and who was held to be responsible in damages to the workmen injured, as well as to the contractor."

§ 40. Plans and Specifications.-It has already been noted that, as a result of defects in his plans, an architect may be debarred from recovering his compensation for them and it is also true that for these defects he may in addition be liable in damages. This liability, providing the defects upon which it is based would be patent to one skilled in the art though not apparent, perhaps, to one lacking such expert training, would not, it seems, be affected by the fact that the building had been accepted and the supervision of it ratified."

If the architect exercises ordinary skill and care and his best judgment he can not be held re

sponsible for failures of construction resulting from defects in his plans.

§ 41. Mistakes.-Where there are mistakes in plans and specifications which increase the cost of the building and which proper skill and care would have obviated, the architect is, apparently, liable. Likewise it has been held to be a breach of the duty which he owes to his employer, if he allow a foundation to be so constructed that it is not deep enough, or not protected sufficiently otherwise, to prevent the cracking of a wall which it supports.

10

§ 42. Negligence-Measure of Damages.-In an action to recover damages for the negligence of an architect in the preparations of plans, the measure of damages has been fixed at an amount equal to the difference between the value of the building, as actually designed and constructed, and the value as it would have been, if the building had been properly designed and constructed.11

§ 43. Limitations of Rule.-While the rule is clear that damages may be recovered which are the result of defective plans and specifications, yet it must not be supposed that such damages can

8 Kortz v. Kimberlin, 158 Kentucky 566; Chapel v. Clark, 117 Michigan 638; American Surety Co. v. San Antonio L. & T. Co. (Tex. Civ. App.), 98 Southwestern 387; Grant v. DuPont, 8 B. C. 7, aff'd 8 B. C. 223; Bayne v. Everham, 163 Northwestern r002.

• Erskine v. Johnson, 23 Neb. 265.

10 Schreiner V. Miller, 67 Iowa 91.

11 Larrimore V. Comanche County (Tex. Civ. Apps. Sep. 1895) 32 S. W. 367.

be recovered if, in the erection of the building and without the fault of the architect, there has been a substantial variance from the plans and specifications as submitted by the architect. This is on the theory that an architect, in warranting the safety or proper construction of the building which he designs, warrants it on the assumption and understanding that all of the substantial conditions stated, shown, or included by him in the specifications, and which in his opinion may be necessary and essential to the proper construction of the building, shall be carried out and observed.

While he may do so by express agreement the architect does not impliedly guarantee that the plans are perfect,12 or that he may not have made miscalculations.13 It has even been held that he does not impliedly warrant that the work can be successfully executed according to the plans,14 and that a warranty of the sufficiency of the plans will not be implied unless the reason to do so is very clear.1

15

An architect who agrees to erect a house by the job is answerable for defects in his materials or work, but he is not responsible for the unfitness of the soil or for the refusal of the

12 Kortz v. Kimberlin, 158 Ky. 566; Coombs v. Beede, 89 Me. 187; Shipman v. State, 43 Wis. 381.

13 Bayne v. Everham, 163 N. W. 1002; Coombs v. Beede, supra.

14 Thorn v. London, 1 Appeal Cases 120.

15 American Surety Co. v. San Antonio etc. Co. (Texas), 98 S. W. 387.

owner to have excavations properly prepared.16 Again, if he recommends the use for a special purpose of a material largely and successfully used in other buildings, and for similar purposes, he cannot be held responsible if the material fails to be effective.17

So also, if a defect is the result of a refusal by the owner to expend the money necessary to obviate it, the architect will not be held responsible and can collect his compensation.18

§ 44. Burden of Proof-Illustrations of Rule. -Where damage of this character is claimed, the burden is upon the plaintiff to prove a substantial compliance with the plans and specifications. The leading case on this point and a case in which the law is stated at some length and with great clearness was decided by the Court of Appeals of New York State in October, 1893. In that case, an action was brought against the architects (a firm) to recover damages claimed to have resulted by reason of defective plans, specifications, and drawings, prepared by them for an opera house. The sole defect complained of was in regard to the plan of the proscenium arch which was in segmental form, thirty-six feet long with a rise of eight feet. It was built of brick and, upon the removal of the cradle supporting it, fell, necessitating its reconstruction. In the court below, the

16 Powell v. Markham, 18 La Ann. 581.

17 Stewart V. Boehme, 53 Ill. App. 463.

18 Levy v. Kohlman, 8 La. App. (Orleans) 233.