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sent the contractor, without authority to do so, or the right to bind him. Cases of this character are, however, entirely special in their circumstances and governed by distinct rules of law which are not applicable to the ordinary case of the submission of a bid and its subsequent withdrawal or acceptance.

It often happens that, in addition to the general written contract, there is a supplemental or additional agreement between the owner and the contractor, covering some new developments in the work or some understanding not embraced within the terms of the general contract. Where this is the case it is important that any such additional understanding be reduced to writing.

There is a special reason for this, aside from the general desirability, which I have emphasized, of having all understandings in written form. There is a rule of law which provides that the terms of a written document cannot be varied or changed by oral evidence. The rule is an entirely reasonable one and its purpose is to protect parties, who have entered into a written agreement, against the attempt of either one of them to evade the terms of the agreement, by testimony to the effect that the agreement does not mean what it says, and that an additional verbal agreement has been made between the parties which changes the terms of the original written instrument.

Under certain circumstances, such as the case of an agreement which is clearly collateral to the original agreement, the oral agreement will be recognized as valid, but it is never safe to depend upon this exception to the general rule. If the original agreement be in writing and any changes in that agreement are contemplated, or any new understanding between the parties relative to the work covered by the original agreement are desired, the only safe course for

the parties to pursue is to reduce the new understanding, or the amplification of the original agreement or the changes therein as the case may be, to written form.

I have been discussing recently, with an architect, a case which shows how easily the failure to reduce the oral understanding to writing may result in loss and embarrassment. In the case which I have in mind the builder whom the client proposed to employ did not operate a union shop. The architect, knowing this fact, had a conference with the builder and told him that, while his client would like to employ him as the contractor on the job, he could not do this unless he were assured that there would be no difficulties with the unions, and that the job would not suffer by reason of the fact that the contractor was a non-union man. The contractor assured him that he could do the work without precipitating any difficulties of this character and it was agreed specifically between the architect, acting for the owner, and the contractor, that the contractor was awarded the contract to perform a portion of the work on the building, on the understanding and representations and guarantee by him that he could do the work, assigned to him, without any difficulty being raised by the union officials. The contract with this contractor covering the work to be done by him was reduced to writing. This contract did not make any reference, however, to the understanding regarding the union situation and the oral agreement entered into, on this point, was not put in writing.

Hardly had the work been commenced, when the unions descended upon the owner and architect and served notice that none of the other work on the job would be attended to, so long as the non-union contractor was employed. The result was that the owner, in order to secure the erection of his house,

was forced to make a new contract with a union contractor covering the work which it had been originally agreed the non-union contractor should perform. The latter promptly sued the owner for breach of the written contract.

The defense to the action lay in the proof, if possible, of the oral agreement between the parties, and in the oral guarantee and representations by the contractor that he would be able to do the work without interference by the unions, and the fact that the contract was accepted on this understanding. The court refused to allow evidence of the oral understanding and the contractor was given judgment.

All of this difficulty would have been obviated had the agreement and guarantee on the part of the non-union contractor been reduced to writing. A few lines in writing signed by him, giving the substance of the oral agreement and making it clear that the written contract was entered into by the parties on the understanding stated, would have obviated the whole difficulty and would have placed the contractor in a position where it would not have been possible for him to sue successfully. It would have been still better if there had been inserted in the original written contract itself a clause specifying that, in the event that any difficulty were raised by the unions, the obligations of the owner to continue under the contract would terminate, and that the contract might, under such circumstances, be terminated by the owner at his option, accordingly.

This is only one of a score of cases which might be cited, all emphasizing anew how many difficulties may flow from the failure to secure, in the first instance, some very simple written statement or agreement. What I have said, with respect to supplemental agreements which attempt to change the terms of the construction contract, applies equally to any

agreements which attempt to vary the terms of the contract between architect and client.

I realize that it is quite natural that an architect, in the midst of a busy practice and with his chief attention focused on the plans for the work proposed, should not have in mind the desirability of covering points of this character by written memoranda. If the architect will, however, realize the amount of damage which may come, both to his client and to him personally, by a failure to have all important understandings relative to the work reduced to writing, he will find that the acquisition of this habit is an asset of tremendous value in the practice of his profession. Also he will find that the client will appreciate being advised with respect to his agreements with the contractor and his rights and obligations thereunder. I can only suggest that, in handling the various jobs committed to his care, he endeavor to consider more carefully each problem as it presents itself, and that, before acting, he analyze it from the point of view of whether the action which he proposes to take is sufficient to safeguard his clients' rights and his own rights as well. Where there is the slightest doubt in his mind, or where an agreement between any of the parties is of substantial importance, he should take proper advice and see that the situation is covered by a definite written agreement in proper form.

CHAPTER IV.

REPRESENTATIONS OR GUARANTEES WITH RESPECT

TO COST.

Their dangers.-Importance of clear understanding.-Suggested provision for protection of architect.

If the amount due for services be the only issue, the architect may at the worst lose a portion of the gain which he anticipated would accrue to him from a particular job, and find that he has given his time for nothing or for less than he should receive for it. If, on the other hand, the client comes in with a claim against the architect based, for instance, on the allegation that the architect has represented and guaranteed that the work can be done for a definite amount, whereas in fact the cost of the work has been vastly more than the limit set by the architect, the latter is not only faced with the danger of losing his fee, but is quite likely to be called upon to pay the difference between the estimated cost and the actual cost. It is to prevent just such a claim as this, and to anticipate and make impossible misunderstandings and claims against the architect, on many other points which I propose to note, that the contract between the client and the architect is designed. The contract, if properly drawn, will take care of all of the danger spots in the ordinary relationship of client and architect.

The matter of an alleged or implied guarantee by the architect, to which I have already referred, is very seldom considered by architects in their dealings with their clients, and yet among the earliest

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