the client. In the larger operations, many of the items which would be necessarily covered in residential work can safely be omitted, while, on the other hand, the architect must be careful to see that he is perhaps more fully protected on other points, which to the residential architect may be of minor consequence. The forms given in the appendix cover various types of architectural practice, varying from residential work to apartment house or hotel work. The best use, however, which the architect can make of these forms is not to adopt one of them bodily, but to use them as a guide in evolving the form of contract best suited to his own practice and specially prepared to meet his own problems.

One of my clients has adopted a rather ingenious compromise, which, while not as effective as the making of a proper contract with the client, is nevertheless interesting. He has printed a small and rather informal-appearing schedule of his charges, in general terms, based largely upon the schedule of charges of the American Institute and of the New York Chapter, and has headed it, "Practice and Charges of (name of the architect)." When a client calls and asks him to undertake a new piece of work he hands him, in the course of the discussion, one of these schedules. He does not ask the client to sign any agreement or to sign or initial the schedule, and does not lay any particular stress on the schedule. He says simply enough to indicate that this is the basis on which his work is done.

This procedure is frankly a compromise between the alternative, on the one hand, of not mentioning the matter of charges and the other terms upon which the work is undertaken, and trusting to secure payment of the reasonable value of the work done in due course, and the alternative, on the other hand, of asking the client to sign a formal agreement speci

fying the exact terms upon which the work is undertaken, and the rights and liabilities of the architect and the client in connection therewith. The best that can be said of it is that it is a vast improvement on the custom of many architects of saying nothing, and that in the case of a dispute it enables the architect to urge, with a fair chance of success, that the client was put "on notice" as to the terms upon which the work was to be carried out.

In a number of cases which have arisen, I have brought suit for this particular architect successfully on the theory that there was a definite contract, between the client and himself, to the effect that the work would be done and paid for under the conditions, and at the rates, specified in the schedule which he handed to the client. This is on the theory that the client, in going ahead with the work, after having been given a copy of the schedule and told that it represented the charges and terms of the architect, must legally be deemed to have agreed that the work should be done and paid for accordingly. This is treading upon very treacherous ground, however, and I am never very happy in these particular cases until the court or the jury has finally determined that a contract really did exist and that the terms of the contract are the terms which are stated in the memorandum. Testimony by the client or in his behalf that the memorandum was brought to his attention in a casual way only, or that it was not made clear to him that it was to control the particular job in which he was interested, or that verbal modifications of the terms stated in it were agreed upon, might well upset the whole contract theory and rob the schedule of much, if not all, of its effect.

Where a contract cannot be established the architect will not be able to sue upon the theory of an express contract, but will have to depend for his

recovery and for the enforcement of his rights upon the theory of what the lawyer calls a "quantum meruit." Translated into everyday English this means upon an implied agreement by the client to pay the reasonable value of the work done. When this is the case entirely new elements are introduced into the situation. The architect cannot go into court and show that the client promised to pay him a definite sum and recover that sum accordingly. He must, on the contrary, bring in expert testimonyin addition to his own-to prove to the satisfaction of the court and jury the reasonable value of the services which he has performed. The client can then introduce, on his part, testimony to show that the work was not of the value claimed, and that the experts who have testified for the architect have placed upon it too high a valuation. Thus, an entirely unnecessary issue is at once presented for the consideration of the jury, and the old condition of opposing experts, testifying some for the plaintiff and some for the defendant, is again presented. The result will probably be a compromise verdict at the best.

It needs no elaborate argument to show that a litigant who can present a definite contract, signed by the man whom he sues, is in a much stronger and more advantageous position than the claimant who comes into court without any such basis for his suit. Where a contract is made the defendant cannot avoid the issue, by contending that the terms embodied in the agreement were not the terms upon which the work was done, because the court will not allow the terms of a written agreement to be varied or changed by an alleged verbal understanding inconsistent with them. Again, the client will not be allowed to attempt to show that the consideration to be paid the architect, as stated in the contract, is more than the

work is worth, because, having agreed in writing to the specific amount, the court will hold that he is bound by the agreement which he has deliberately made. Proof of the written agreement and of the proper performance of the work contemplated by it will be enough. No expert testimony will be required as to the value of the work, and the jury, having the definite writing before it, will usually find a verdict for the full amount agreed upon.

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The ordinary practice and the ordinary contract and agreement, pursuant to which the architect performs his work, calls for the computation of the commission upon the total cost of the work. The total cost of the work means the construction work and, any different basis of computation is in the minds of the parties, the contract should make clear exactly what is contemplated. I have in mind the case of an architect who entered into a contract with a county for the preparation of drawings, specifications, and engineering and supervisory services, in connection with the erection of a county building to be erected at the county seat and on a site to be designated by the county.

The county agreed to pay the architect a fee of 5% on the total cost of "said improvements for which said architect renders services." Preliminary drawings were started, but before they were approved, a controversy arose with reference to the site of the building and developed into a very bitter and long drawn out fight. Various public meetings were held, and at one of these meetings the architect was present and suggested that he prepare contour maps and estimates of cost for the five different sites which were under discussion, in the hope that this might provide a basis for determining the most satisfactory and economical site. The architect prepared the maps and estimates and at length one of the sites

was decided upon and purchased. When the architect came to make up his first bill, he included a charge of 3% on the cost of the site, as well as on the estimated cost of the building. This was paid to him. Later, the complexion of the County Board changed and the architect submitted his final 2% charge, figured also on the cost of the land and building. The Board refused to pay it and claimed, in addition, that the amount on which the 3% was figured should not have included the cost of the land. The questions presented are whether the architect, under these conditions, has a right, in figuring his commission, to include the cost of the site and, secondarily, whether, if he cannot do this, he can recover the value of his services in preparing the contour maps and estimates of cost for the proposed sites.

It seems reasonably clear that this architect could not include the cost of the site, in estimating his fee. The wording of the contract is peculiar, in that the 5% is to be figured, not on the total cost of the work or of the building, but on the total cost of the "improvements for which said architect renders services." This might conceivably mean the site as well as the building itself, but it seems to me that this would be a strained construction and that the reasonable meaning of the contract, especially in view of the ordinary practice in the profession, should be construed to be that the fee is to be figured on the cost of the building itself, and that the word "improvements" as used has reference to the actual structure to be erected and the work done on the property, as distinguished from the cost of the property.

It is true that the services of the architect, in preparing the contours and the estimates, entered into the purchase of the land, and that to this extent he was instrumental in aiding in securing the site. This