plaintiff recovered as damages, a sum equal to the cost of rebuilding it and the added cost of repairing the injury which its fall caused to the other parts of the building.

The plaintiff, an assignee, based his claim in particular upon the failure of the defendants to make provision in the plans and drawings for a blind arch over the segmental arch, on the theory that if such had been shown and provided for, it would have been constructed and no damage would have resulted. The plaintiff gave evidence in the court below which tended to show that the fall of the arch might have been due to the fact that it was too flat and that the spring necessary for self-support in an arch of the width of the one in question, could not be given by a rise of eight feet therein. The plaintiff was also allowed to give evidence that the arch was so planned and constructed that its thrust fell without, instead of within, the abutments upon which it rested, and that its fall may have been due to this fact also. The plan of the arch required that stone skew backs be put in at each heel, at the points where the arch met the abutments. It appeared that the purpose of these skew backs was to furnish a firm foundation for the arch and to distribute its thrust over a larger area of the abutments.

One of the defendants, a man of large experience, testified to the preparation of plans for, and the building of, many theaters and opera houses, and the placing in many of them of seg

mental arches having no greater rise than the one in question, without experiencing any difficulties. He also testified that he always made provision in such plans for stone skew backs and considered them elements of vital importance to the support of the structure. It appeared that in building the arch in question these skew backs were omitted and that the responsibility for their omission rested with plaintiff's superintendent. Experts testified that skew backs of stone were necessary to the proper construction of the arch, bearing out the testimony of the defendant on this point.

The trial court submitted to the jury the question whether the arch fell on account of the omission of the stone skew backs, holding that there was sufficient evidence to support a finding to that effect and instructing the jury that if they found this to be the case, the plaintiff could not recover. The jury evidently did not so find for they gave judgment for the plaintiff. Judge Maynard of the Court of Appeals, in reviewing this decision said:

"But we think it was error to submit this question to the decision of the jury. When it was conceded that the plaintiff's assignor had not followed the plans in this respect, and it appeared that the failure to put in the stone. skew backs may have caused the loss, which the plaintiff is seeking to impose upon the defendants, they were entitled to a ruling as a matter of law, that the plaintiff could not recover, and the complaint should have been dismissed. He had failed to establish a performance of the conditions precedent, which was essential to the sup

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19

port of his cause of action. One of the principal allegations of the complaint had been left unproven. The action is ex contractu, and the defendants cannot be made. liable upon a contract which they never assented to. There is no principle upon which a case of this kind can be excepted from the rule, so firmly established, that every stipulation which the parties have inserted in a contract by way of conditions to be performed is to be deemed material The plaintiff's assignor was contracting for the exercise of the technical knowledge and skill of the defendants, and it was upon the infallibility of their own judgment that the defendants relied when they made their guaranty that if the arch was constructed in accordance with their directions it would stand. They regarded a stone skew back of vital importance for its security and stability, and their promise to make good any loss which might occur if it fell, was upon condition that this method of construction was adopted, and we are not permitted to say that they would have entered into the agreement had they known that these essential supports were to be omitted.

"It is not necessary to hold that a literal performance of the condition was required. A variance, confessedly immaterial, or a departure from the plans in a separate and independent part of the building, having no structural relation to the defective member, would present a different case for our consideration. But where the variance is not disputed, and involves the integrity of the mode of construction of the affected part, and is so far material that it may have been the direct cause of the injury for which the owner seeks to hold the architect responsible, it must be held, we think, that the plaintiff

19 Citing, Dauchey v. Drake, 85 N. Y. 407; Hill v. Blake, 97 id. 216; Tobias v. Lissberger, 105 id. 404; Bank of Montreal v. Recknagel, 109 id. 482; Clark

v. Fry, 121 id. 470; Norrington v. Wright, 115 U. S. 188; Glaholm v. Hays, 2 M. & G. 265.

has failed to establish the cause of action upon which he relies." "20

In another State the Court seems to have gone so far as to substantially assume, as a matter of legal inference, that the architect is negligent where the walls of a building crack on account of a defective foundation.21 The New York doctrine would seem certainly to be the more equitable, safeguarding as it does the architect against claims for damage occasioned through no fault of his own, considering fully each case in the light of the special facts developed, and keeping more clear the distinction between the architect and the owner and the particular duties of each, in determining whether the damage is or is not traceable to a lack of skill or neglect on the part of the architect.

§ 45. Repairs and Supervision.—Where, on account of defects or of some oversight on the part of the architect, it is necessary that repairs be made, the claimant cannot make these repairs at an unnecessary expense, or in an unnecessarily extravagant form, and recover as damages the amount of his disbursements in so doing. He must confine his claim to such sum as will represent the cost of effecting the repairs as economically as it is possible to effect them, consistent

20 Lake v. McElfatrick, 139 N. Y. 349, reversing 46 N. Y. St. Rep. 437, 19 N. Y. Supp.

21 Schreiner V. Miller, 67 Iowa 91.

with proper workmanship and construction. It must always be borne in mind, also, that the architect does not guarantee satisfaction and that, in the absence of special circumstances or agreements, his duty is fulfilled when he has prepared the plans and carried out the provisions of his contract with reasonable skill, diligence and

care.

$46. Reasonable Care and Diligence Required -Illustrations of Rule.-The rule requiring the exercise of reasonable care and diligence on the part of the architect in the preparation of plans 22 is equally applicable to his position as supervisor.23 If such reasonable care and diligence be not observed, the architect will be liable to the owner for any damage which may result to the latter by reason of such neglect.24

An architect employed to complete a partially constructed building must use reasonable care

22 Johnson V. Wanamaker,

17 Pa. Sup. Ct. 301.

23 Straus v. Buchman et al., 96 N. Y. App. Div. 270; aff'd 184 N. Y. 545; Gilman V. Stevens, 54 How. Pr. (N. Y. Super. Ct.) 197; Merriman v. Fowler, 37 N. J. L. 89; Coombs v. Beede, 89 Me. 187; Fontano v. Robbins, 22 Appeals (D. C.) 253; Cowles v. Minneapolis, 128 Minnesota 452; O'Neill Engineering Co. v. St. Augustine, 171 Southwestern 524; Shipman v.

State, 43 Wisconsin 381; Badgley v. Dickson, 13 Ontario Appeals 494; Eastham V. Blanchette, 42 Texas Civil Appeals 205.

24 Merriman v. Fowler, 37 N. J. L. 89; Lottman v. Barnett, 62 Missouri 159; Strauss v. Buchman, 96 App. Div. 270; Foeller v. Heintz, 137 Wisconsin 169; Bruce v. James, 23 Manitoba 339; Badgley V. Dickson, 13 Ontario Appeals 494.