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or improper skill or lack of diligence in carrying out the directions of the owner, the architect will be liable within the ordinary rule requiring the exercise by him of reasonable skill and diligence.

The architect cannot escape liability for damage resulting from steps taken subject to his direction or on his advice and approval, on the mere plea that he was not present when the damage resulted. Where a wall fell as a result of a jackscrew worked under the supervision of one employed by the owner on the advice of the architect, and subject to the latter's direction, and it was shown that the architect approved the use of the jackscrew, he was held liable in damages for the death of a workman as a result of the falling of the wall, despite the fact that the architect was not present at the time the accident occurred.3

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847. Negligence a Question of Fact.-The question whether there has or has not been negligence or want of skill in a given case is a question of fact and not of law; 39 but the matter of negligence, while a question of fact, and, consequently, a question for the jury, should not be left to the latter in such a way as to refer to them the question of what it is proper or improper in the broad sense for the architect to do, entirely unrestrained by the evidence or special circumstances

38 Lottman v. Barnett, 62 Mo. 159.

39 Straus V. Buchman, 96 N. Y. App. Div. 270; Hubert v. Aitken, 15 Daly (N. Y.) 237;

19 N. Y. St. Rep. 914; 2 N. Y.

Supp. 711, affirmed (on reargument) 5 N. Y. Supp. 839, 15 Daly (N. Y.) 241, affirmed by Court of Appeals, 123 N. Y. 655.

of the case. Where, on the facts, it appears that the architect has used reasonable diligence, care, and skill, it is improper to leave it to the jury to decide whether he has properly performed his duties.40

§ 48. Burden of Proof.-The burden of proof in a proceeding to recover damages for negligence or want of skill on the part of the architect is upon him who seeks to establish it. On the

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other hand, it is no answer to a charge of negligence to plead reliance on the statements of others.12

§ 49. Architect as Arbitrator.-In many cases the architect will, under the terms of his contract, be called upon to act as referee or arbitrator in the determination of some question arising during the progress of the work. In such an event a new rule of law is to be considered, namely, that a judicial officer is not liable in matters connected with the exercise of his judicial duties, provided, and so long as, he exercises these duties honestly. This rule includes not only judges of courts, but all officers in general who are necessarily called upon to exercise duties of a judicial or quasi-judicial nature or duties to be performed in accordance with the dictates of their judgment."

40 Vigeant v. Scully, 20 Ill. Apps. 437.

41 Gilman v. Stevens, 54 How. Pr. (N. Y. Supr. Ct.) 197 at 207.

42 Moneypenny v. Hartland, I C. & P. (Carrington & Payne)

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352; 2 C. &. P. 378; Hubert v. Aitken, 15 Daly (N. Y.) 237, judg. aff'd, 123 N. Y. 655, supra.

43 Jones v. Brown, 54 Iowa 74; Pappa v. Rose, L. R. 7 C. P. 32; 1 Eng. Rep. 87, aff'd L.

Where, therefore, an architect "undertakes to give a decision as to any matter, though he may not be an arbitrator in a strict sense of the word, and is not bound to exercise all the judicial functions an arbitrator would have to exercise, nevertheless, he is not liable to an action for want of skill." 44

§ 50. Certificates.-Many of the more important questions, of interest to the architect in the matter of the issuance of certificates, arise as between him and the builder, or in actions by the builder against the owner to recover the contract price. These questions are considered elsewhere.45

The architect is, however, under certain definite duties and liabilities to the owner with respect to the issuance of certificates and, in issuing them, he must exercise that same reasonable care and diligence which is required of him in the preparation of his plans and in the supervision of the work of construction.46

This rule has been applied to circumstances where the contractor failed and, as a result of his failure, the owner was compelled to complete the work at an expense exceeding the amount of the balance due to the contractor. It appeared, in

R. 7 C. P. 525, 3 Eng. Rep. 375; Wait, Eng. & Arch. Jur. §844; Mechem on Public Officers, §§ 638-639.

44 Wait, Eng. & Arch. Jur., § 846; Pappa v. Rose, L. R.

7

C. P. 32, 525, supra. 45 See §§ 11, 55, 66, 95, 97, 98, 99, 114.

46 Irving v. Morrison, 27 U. C. C. P. 242.

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the case referred to, that the architect had given certificates in the amount of $2,950 when he should have only certified the sum of $2,295. The owner was allowed to deduct from the amount paid the architect for his services, the excess amount which he had paid to the contractor as a result of the error in certification.

This doctrine of the liability of the architect in the matter of the issuance of certificates, based upon his neglect to use reasonable care and diligence, should be construed and read in the light of the fact that where no special manner of inspection is specified in the contract the courts, in at least one of the States, have held that there is no duty imposed upon the architect to make, before issuing a certificate, a special inspection of the work done, sufficiently detailed to satisfy him not only that the work covered by the particular certificate in question has been performed, but that it has been performed properly and in accordance with the contract requirements.48 It has been held, also, that the duty of a superintendent of construction to give monthly estimates of the work done does not impose upon him the obligation to give "correct and accurate" estimates, but that the monthly estimates must of necessity be approximations only.19

47 Irving v. Morrison, 27 C. P. (Upper Canada) 242.

48 Vigeant v. Scully, 20 Ill. App. 437.

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49 Shipman v. State, 43 Wis. 381; but see Ashland etc. Co. v. Shores, 105 Wis. 122.

CHAPTER V

DEATH OF ARCHITECT AND

OWNERSHIP OF PLANS

§ 51. Death of Architect.-The contract between the owner and the architect, as in the case of any other contract or relationship of a professional character, is in its very nature personal, and it follows, accordingly, that where the architect dies before the work on which he is engaged has been completed, the right to complete the work does not survive to his executor, and that, on the other hand, the owner can not, under such circumstances, impose upon the executor a liability to perform it. This rule does not mean, however, that where, under his contract with the owner, the architect has, at the time of his death, already earned and become entitled to a part of his compensation, the executor can not protect the estate in this connection. Where one employed as a consulting engineer had partly com-pleted, prior to his death, the work on which he was engaged and, under his contract of employment, had earned certain of the installments in the form of which, quarterly, it was agreed that his compensation should be paid to him, his personal

1 Stubbs v. Hollywell R. Co., L. R. 2 Exch. 311; and see Hall v. Wright, 96 E. C. L. 746.

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