agency of the architect may, broadly speaking, be either express or implied. Where express, that is where the authority has been conferred in definite terms, it may be either written or oral; where implied and where, consequently, there is no formal agreement either written or oral by which to determine and measure the extent and character of the authority conferred, the question of the architect's agency will be determined by the ordinary principles of the law of agency modified as they may be by circumstances, and by the customs and rules governing the practice of the architectural profession. When the terms are express, whether written or oral, no amount of custom will justify a departure from them—assuming of course that there are no provisions which are illegal or opposed to public policy—and the terms of the authority delegated must be strictly respected and adhered to and will be disregarded or exceeded by the architect at the immediate risk of his incurring a direct personal liability.1

89. Extras. Of the many questions which arise in connection with the agency of the architect there are none, probably, of more vital interest to the owner, to the architect, and to the builder, than those which relate to the matter of

1 Homersham V. Wolverhampton Water-works Co., 6 Exch. 137; Thayer v. Vermont Central Railroad Co., 24 Vt. 440; Vanderwerker et al. v. Vermont Central Railroad Co., 27 Vt. 125, Id. 130; Herrick v. Estate of Sewall Belk

nap et al., 27 Vt. 673; Ahern v. Boyce, 19 Mo. Ap. 552; Woodruff v. Rochester and Pittsburgh Railroad Co., 108 N. Y. 39; Weggner v. Greenstine, 114 Mich. 310; Redfield on Law of Railroads, 6th ed., vol. I, p. 430.

extra work. Almost invariably, before the contract has been finally completed, some extra work becomes necessary. It is in the interest of all concerned that the respective rights and liabilities of the parties in this connection be as clearly understood as possible. The owner should understand them that he may not be put to needless expense; the builder that he may not be placed in a position, where, after proceeding in good faith with extra work, he finds he can not recover for the work which he has done; and the architect should understand them, both that he may safeguard the interests of his client and that he may not himself incur a personal liability to pay for extra work performed as the result of an authorization given by him, but which he had no power or right to give.

In every case where the contract contains a clause or clauses designed to protect the owner from claims for extra work, both the architect and the contractor will do well to proceed most cautiously, the one in authorizing and the other in performing any extra work, in any manner inconsistent with a strict interpretation of the contract provisions.

In a leading case already referred to 2 a construction company contracted with the defendant, a railroad company, to construct a portion of its road. The construction company in turn made a contract with a third company to complete a certain portion of the section of the road covered by

2 Woodruff v. Rochester & Pittsburgh R. R. Co., 108 N. Y. 39.

the contract between the construction company and the railroad company. The third company in turn sublet a portion of the work undertaken by it, to the plaintiffs. Included in the terms of the subcontract was the following: "Extra Work-nor shall any claim be allowed for extra work unless the same shall be done in pursuance to a written order from the engineer in charge and the claim made at the first settlement after the work was executed, unless the chief engineer, at his discretion, should direct the claim or such part as he may deem just and equitable to be allowed." The plaintiffs in performing their work were called upon to do considerable excavating which was necessitated by the sides of the cut which they were making caving in on a number of occasions. For this work they claimed extras and the proof tended to show that they did the work at the request of the engineers in charge. There was no evidence that these engineers had any special authority whatever from the defendant to bind it for this work, or to enter into any contract on its behalf relative thereto. Neither did it appear that the defendant had ratified the agreement alleged to have been made with the plaintiffs by the engineers. The Court, after referring to the terms of the contract with reference to extra work and above quoted, said:

"This was one of the terms of the contract and we are unable to perceive that the engineers had any power or authority to alter or change it. It was inserted in the contract to protect the defendant from claims for extra

work which might be based upon oral evidence, after the work was completed and when it might be difficult to prove the facts in relation thereto. If the engineers in charge had an unlimited authority to change the contract at their will, and to make special agreements for work fairly embraced therein, then the defendant had very little protection from the reduction of their contract to writing. If these engineers were the agents of the defendant, they were its agents with special powers, simply to do the engineering work and to superintend and direct as to the execution of the contract. But they had no power to alter or vary the terms of the contract or to create obligations binding upon the defendant not embraced in the contract."

To state the rule in slightly different form: "Where the contract contains express provisions that no allowance shall be made against the company for extra work unless directed in writing under the hand of the engineer or some other person designated, or unless some other requisite formality be complied with, the party who performs extra work, upon the assurance of any agent of the company, that it will be allowed by the company, without the requisite formality, must look to the agent for compensation and can not recover of the company, either at law or in equity."

8 Redfield on the Law of Railroads, 6th ed., vol. I, p. 430; White v. San Rafael and San Quentin R. R. Co., 50 Cal. 417, holding a verbal order for extra work to be of no effect where the contract, while providing that the engineers may direct alterations

and additions, also provides that no payment for extra work shall be made, unless the latter has been ordered in writing by the engineer; Kirk v. Guardians, etc., 2 Phila. 640, 1 Redfield Am. R. R. Cases, 305.

It must be clearly understood that inasmuch as the agency of the architect is limited by the terms of the contract between himself and his client, the fact that he is employed as architect does not in itself constitute him the general agent of the client. The owner may constitute the architect his general agent for all purposes and by declaring him broadly to be "the agent of the owner" invest him thereby with authority to bind the owner for extras and for alterations," but the general rule is entirely clear that an architect engaged to superintend the construction of a building must see that the contract is carried out in accordance with its terms, and has no right whatsoever, in the absence of special authorization, to change, to alter, or to modify, the terms of the contract between the owner and the builder, nor to make new contracts involving additional expenses, nor to make any alterations in the plans and specifications, nor to authorize extra work or material other than that specified in the original

contract.

• Starkweather v. Goodman, 48 Conn. 101; Crockett V. Chattahoochen Brick Co., 95 Ga. 540; Adlard v. Muldoon, 45 Ill. 193; Coombs v. Beede, 89 Me. 187; Leverone V. Arancio, 179 Mass. 439; Weeks v. The Rector, etc., of Trinity Church, 56 (N. Y.) A. D. 195; Dodge v. McDonnell, 14 Wis. 553.

Langley v. Rouss, 85 (N. Y.) A. D. 27; Kimberly,

v. Dick, L. R. 13 Eq. I.

Fireproof Building Co. v. First National Bank, 54 Super. Court (N. Y.) 511; Glacius et al. v. Black, 50 N. Y. 145; Dillon v. City of Syracuse, 5 Silv. Supreme Court (N. Y.) 575, 9 N. Y. Supp. 98, 29 N. Y. St. Rep. 912; Fitzgerald v. Moran, 141 N. Y. 419; Woodruff v. Rochester, etc., R. Co., 108 N. Y. 39; Richard v. Clark, 43 Misc. (N. Y.) 622; Stark