CHAPTER II

CONCLUSION

§ 116. Summary and Final Suggestions.-In closing, it may be well to draw attention by way of brief summary to some of the more important of the points referred to in the foregoing pages, and especially to those points of particular importance to the proper protection of the architect and to the enforcement of his rights.

If the architect is to practice his profession, and deal with his clients, with a minimum of legal controversy or loss, he must, in the first place, see that his contract with his employer is as definite in all of its terms and provisions as it is possible to make it. If his employment is merely for the purpose of preparing preliminary drawings, he should take care that nothing is said from which it can be assumed that he waives his right to payment for the work done; and if possible it should be expressly understood that payment is expected. On the points of agency and extras, especially, the contract and understanding should be full and unequivocal, and as to both of these points the architect should exercise the greatest care in the assumption of any authority not expressly and clearly provided for. He should remember that the building contract is, as to many of its provisions, drawn for the primary protection of his

client and that, without the consent of the client, he may not safely undertake to waive, or allow the builder to believe that he can waive or dispense with, any of the stipulations which have been made for his client's benefit, such as those requiring written authorization for extra work, the proper completion of work before a certificate is issued therefor, and the presentation of the certificate as a condition precedent to the right to enforce payment.

Not only should the architect make sure that the terms of the contract between his client and himself are clearly understood, in order to avoid the many difficulties which it has been seen an ambiguity or careless wording of the contract may mean to both of them, but he should, in addition, be careful to see that the contract is properly executed and legally binding. This caution applies particularly to those cases where the client is an association or corporation, or one acting in a representative as distinguished from an individual capacity. It ofttimes happens that a contract entered into by or in behalf of a corporation which, to the ordinary layman, would seem to be unquestionably binding on the corporation, is, in fact, not so at all, for the reason that some requisite element or formality well recognized in law, but not of such a nature as to be readily realized by the architect, has been omitted, thus rendering the contract void as against the corporation.

In dealing with corporations, and especially with municipal corporations, therefore, the archi

tect should satisfy himself that all proper legal formalities have been complied with, that the contract has been executed by the proper officer and is in the proper form, that due authority has been granted by the directors or the city department or governing bodies of the corporation, as the case may be, wherever such authority is necessary to render the contract binding upon the client, and that the contract is in general, and in all respects, so drawn and so executed that its validity will be upheld, and its terms enforced. Thus, also, in dealing with trustees or executors or those acting in any representative capacity, in matters involving large expense or compensation of real importance, it will not be going too far for the architect to secure, if possible, certified copies of Letters Testamentary and similar documents and, in the case of corporations, copies of directors' minutes, of by-laws or of other papers whereby the authority or other elements upon which the validity of the contract depends may be clearly determined.

The architect must remember, too, that while the law requires nothing unusual in the way of skill and attention in the supervision of the work, on the other hand, it does require that there shall be present a reasonable degree of each; and, as to supervision, he should remember that in order to lay a clear and proper basis for the protection of his rights, under the mechanic's lien statutes in the various jurisdictions, he should, if possible, see that the element of supervision of the work,

even if to a very slight extent, is present, to comply with the rule pursuant to which so many of the States have granted and enforced a lien, where this element has been established, but refused relief where it has been absent.

Finally, in the matter of plans, if it be desired that title thereto remain in the architect, care should be taken to see that a specific stipulation to this effect is included in the contract or agreement between the architect and the client.

It is of equal importance that the owner and the builder be vigilant to insure that the construction contract between them be clearly understood, and without any latent ambiguity; that any provisions for liquidated damages or extras, especially, be so phrased and determined upon that there can be no doubt in the mind of any one of their meaning, or of the intentions of the parties to the contract; that neither of the parties give to the other any cause for complaint, on the ground of unfair treatment or collusion with the architect, or with other parties; and that any provisions for arbitration in the contract be so drawn that they can not be construed to usurp in any way the jurisdiction or proper province of the courts.

The builder, before he institutes any action against the owner for the recovery of the contract price, should be very sure that he himself has complied with all the terms of the agreement between them; that he is not estopped from recovering the amount which he claims to be due him by a failure to secure the architect's certificate, or to offer a

proper excuse for its non-production; and that the contract has been performed by him in all substantial particulars, or, in the event that it has not been so performed by him, that performance has been waived or prevented by the owner. The owner, on the other hand, in withholding any payment from the builder, or in attempting to terminate the contract and complete the work, should be satisfied, before he acts, that, as a matter of law, the work has not been properly performed, and that the builder is legally in default; otherwise, by proceeding against the builder or by terminating and completing the contract himself, he may thereby incur a personal liability and unwittingly prepare the way for an action against him by the builder for damages.

There will be very few situations where attention to most or all of the points noted cannot be given at the expense of a very reasonable degree of attention and time, and there can be no question that time and attention so expended will in the prevention of misunderstanding, legal difficulties, disputes between the parties, and the expense consequent upon all of these, repay the architect, the owner and the builder in ample measure, and assure to them a feeling and a certainty of definiteness and safety in their mutual dealings, which would otherwise be lacking in a marked degree.