§ 10. Illustrations of Rule.-A leading case on this whole agency question, decided in Connecticut, as early as 1880, arose on the following state of facts: a builder entered into a written contract with the defendant whereby he agreed to furnish the materials to build a house for the defendant in accordance with specified plans and specifications and for an agreed compensation. It was provided that all the materials and work should be accepted by the architect, who was specified, and that the latter should superintend the construction of the building. The builder, in entire good faith and under the direction of the architect, performed certain extra work, which varied from

weather v. Goodman, 48 Conn. 101; Gray v. La Societe Francaise, etc., 131 California, 566; Maldard et al. v. Moody et al., 105 Ga. 400; but see Smith et al. v. Farmers Trust Co., 97 Iowa 117, to the effect that where the contract expressly stipulates that excavations shall be made under the direction of the architect specified, a variation from the plans, by direction of the architect, although without the knowledge of the owner, will not justify any deduction from the contract price. Adlard v. Muldoon, 45 Ill. 193; Campbell v. Day, 90 Ill. 363; Watts v. Metcalf, 23 Ky. L. Rep. 2189, 66 S. W. Rep. 824; Lewis v. Slack, 27 Mo. App. 119; Bond v. The Mayor, etc., 19 N. J. Eq. 376; Mayes v. Reg, 23

Canadian Sup. Ct. 454, affirming 2 Exch. 403; Jones v. Reg., 7 Can. Sup. Ct. 570; Reg. v. Stars et al., Can. Sup. Ct. 118; Baltimore Cemetery Co. v. Coburn, 7 Maryland, 202; Stuart V. City of Cambridge, 125 Mass. 102; McIntosh v. Hastings, 156 Mass. 344; Day v. Pickens Co., 53 S. C. 46; Dodge v. McDonnell, 14 Wis. 553; Wagner Co. v. Cawker, 112 Wis. 532; Fontano v. Robbins, 22 App. Cas. (D. C.) 253; Sharpe v. San Paulo, etc., Co., 27 L. T. Rep. N. S. 699, L. R. 8 Ch. App. 605 (notes), affirmed in L. R. 8 Ch. App. 597; Rex. v. Peto, 1 Young & Jarvis 37; Cooper v. Langdon, 9 Meeson & Welsby 60; Hudson Bldg. Contracts, vol. I, sec. 3

and was in addition to the work outlined in the plans and specifications. When the house was nearing completion, the builder furnished the defendant with a written statement of the extra work and material and the defendant at that time made no objection to it, although it does not appear that he ratified it. It appeared also that at the time when the builder gave the defendant the written notice referred to, the extra work had been actually performed upon and the materials had been actually used in the construction of the building and become a part thereof, and could not be withdrawn. Subsequently, other extras were ordered by the architect and furnished by the builder. It did not appear that at the time when the builder rendered his first bill for extras, he suggested to the defendant the possibility of more extras being needed or indeed that any thought was given to this point by either of the parties. The Court below gave judgment for the plaintiff and the defendant appealed. The higher court reversed the judgment, holding:

"The contract sets forth the extent of Easton's agency for the defendant; he is only to see that the materials and workmanship are in accordance with the specifications. There remained no opportunity to Smith to extend that power by inference, and when he furnished materials for or performed labor upon the house in excess of the specifications upon the order of Easton, he assumed the risk of ratification by the defendant.

Nor is the defendant estopped from insisting upon this contract limitation upon Easton by the fact that when

the house was nearly completed he received in silence a statement of work, and materials not specified in the written contract, which included some which he had not ordered; for these had been wrought into the building and were then beyond possibility of withdrawal by Smith, however strongly the defendant might have protested against payment for them. It is very clear therefore, that, as to these extras, Smith was not led into any action resulting in loss to him by the failure of the defendant to make the objection.

But it is said that other extras were afterwards ordered by Easton and furnished by Smith, and that, whatever might be the effect of the defendant's silence upon the extras already furnished, he ought to be regarded, by reason thereof, as authorizing the extras afterwards. ordered. But it does not appear that Smith at that time suggested to him that there might be other extras ordered by Easton, or that the matter was thought of by either of them. Besides the question whether the defendant intended to influence the future action of Smith, or was guilty of such gross negligence that he could be chargeable with that intention, and the further question whether Smith was influenced by his conduct, were both questions of fact and not of law, and it is impossible for us to find these facts when the court below has failed to do so." 7

In another leading case in Massachusetts, the plaintiffs offered to show that they did the certain work for the value of which the suit was brought under the direction of the defendant's agent, the architect; that they stated to the latter that the work was not included in their contract and that he told them "to go ahead and do the work as he directed and they would be paid for it." The Court excluded this evidence, holding that

"Starkweather v. Goodman, 48 Conn. 101.

"the written contract carefully provides that any additions to or deviations from the plans or specifications shall be directed in writing by the committee or architect, and that 'it is expressly agreed that no alterations or additions are to be paid for unless so directed in writing.' No evidence was offered of any waiver of this provision by the defendant, or of any authority in the architect to waive it. This clause was intended to protect the defendant against claims for extra work under alleged oral directions or contracts. If the evidence offered can be construed to show an oral promise by the architect, founded upon a sufficient consideration, to pay for the work sued for as extra work, it was made without authority, and is not binding upon the defendant." 8

The same rule has been applied, and vigorously, in New York State. In one instance, a building contract provided in the specifications that Kings Winsor cement should be used and the work carried out under the direction of a certain superintendent. Elsewhere in the specifications it was provided that the cement should be mixed "with equal parts good sharp and dry sand." There was also a provision that in the event that any dispute should arise respecting the true construction of the specifications, the matter should be decided by the architect, "whose decision shall be final and conclusive." The plaintiff, a subcontractor for the plastering work, filed a mechanic's lien for his services and materials, and brought an action to foreclose the same. On the trial of the action, it appeared that the cement mixture used was two parts sand and one part cement. The plaintiff

Stuart v. Cambridge, 125 Mass. 102.

testified that the variation from the specifications in the preparation of the mixture was in accordance with the direction of the superintendent. A letter was also introduced which the architect had written to the plaintiff, in which he stated that the plaintiff was not doing the work in accordance with the contract and was not following the instructions of the superintendent, and in which he directed him to follow those instructions "to the letter." The Court below dismissed plaintiff's complaint and the Court of Appeals by Chief Justice Andrews affirmed the judgment below in the following language:

"There is some evidence tending to show that the variation from the specifications in the proportions of sand and cement was directed by the superintendent of King & Company, but it is plain that the provision that the plastering should be done under the direction of the superintendent of King & Company had relation to the manner of applying the plaster, and gave him no authority to change the component parts of the mixture specifically prescribed. . . . It is difficult to see how a letter complaining of the work as not complying with the contract could be construed as an authority to follow the instructions of the superintendent of King & Co., in respect of a matter fixed by the specifications and a departure from which in reducing the proportion of cement would not be of advantage to the owner of the building.""

In another New York case the plaintiff brought action to recover for work done and materials furnished in a building constructed by the defendants, under the direction of their architects.

• Fitzgerald v. Moran et al., 141 N. Y. 419.