The question arose whether the architects had made, or had in any case a right to make, with the plaintiff, a new contract relative to the work and binding upon the defendants. It appeared that the architects were employed by the defendants to prepare the plans and specifications, to secure estimates, and to superintend the erection of the building. The Court held that "the employment as architects to superintend the building and see that the persons with whom the defendants had contracted performed their contracts would not give the architects authority to make new contracts. § II. Other Limitations on General Agency.In the absence of provisions giving to him specific authority so to do, the architect can not employ a new contractor to do work already undertaken by the contractor originally chosen,11 nor can he substitute, either as respects the performance of the work or the payment therefor, a subcontractor for the principal contractor, nor does the mere fact that the owner happens to see the work being done by the subcontractor serve to make the owner liable; for, in the absence of special circumstances, it will be presumed that the owner has the right to suppose that the work is being done for the principal contractor.12 10 The Fireproof Building Co. V. The First National Bank, et al., 54 N. Y. Super. Court, 511. 11 Campbell v. Day, 90 Ill. 363. 12 Campbell v. Day, 90 Ill. 363; Bouton v. Supervisors of McDonough County, 84 Ill. 384, but note that this is a case of public rather than of private agency. 14 13 So, in the case of a public corporation at least, certificates cannot be given to subcontractors, and neither certificates nor orders issued must vary from the form specified in the contract,-if a form be specified. Similarly, when the architect is, either orally or by the terms of the written contract, given authority to certify extras and authorize alterations, the client will not be held liable unless the architect complies with and keeps strictly within the terms of the authority conferred.1 15 Just as the architect has no right in the absence of express authority to order extras or alterations, so too, in the absence of such express authority, he has no right to allow the contractor to vary from the terms of the contract either as respects materials or construction, or as to any of its substantial details or provisions, nor to allow any detail of construction or material to remain which is contrary to the contract terms and provisions.16 It has been held also that the architect has no general authority to exercise a supervision 18 Bouton V. McDonough County, 84 Ill. 384. 14 Mills v. Weeks, 21 Ill. 561. 15 Ahern v. Boyce, 19 Mo. App. 552; Woodruff v. Rochester, etc., R. Co., 108 N. Y. 39; Commune de Calombier. Saugnieu v. Duchez et Savoye. Dalloz Jurisprudence Gènerale, 1883, part 3, p. 92. 16 Glacius et al. v. Black, 50 N. Y. 145; Bonesteel v. The Mayor, etc., of N. Y., 22 N. Y. 162; Burke v. City of Kansas, 34 over the letting of subcontracts or the employment of workmen,17 nor yet to receive a notice of the assignment of the building contract so as to bind the owner.18 § 12. Special Agency-To Be Carefully Exercised. It must be understood that all of the limitations on the powers and authority of the architect, referred to, are limitations upon his powers and authority under his general agency, and that if, orally or in writing, he be authorized to exercise a special authority, or be appointed broadly the general agent of his employer as to all matters relating to the contract or building, his authority will be enlarged accordingly. Thus, for instance, he may be given, specifically, full discretion and authority to pass upon and order extras or alterations, or accept work of a different character than that specified, or to change contractors, or to vary the terms of the contract between his employer and the contractor in such details as he may think best. If he be given such special discretion and authority, he will be justified in exercising it accordingly. He cannot, however, be too careful to ascertain before he acts the exact extent and scope of his authority, for it often happens that provisions delegating to him special authority and which he may consider justify him in assuming certain authority, are legally to be construed as so limited by the other general conditions of the contract, or by the rules of agency, as to make his 17 Lewis v. Slack, 27 Mo. App. 119. 18 Renton v. Monniere, 77 Cal. 449. actual authority and discretion much less than he supposes it to be. Thus a provision giving to the architect the power to make changes in plans or specifications, has been held not to contemplate or authorize any radical changes from the plans or specifications, but only such incidental changes as may fairly be considered to be necessary to complete the work, in accordance with the general intentions of the parties. And where a contract provided that a dam to be constructed was "to be built of masonry" and then provided that the engineer in charge could "make alterations in the line, grade, plans, form, position, dimensions, or materials," it was held that the authority was insufficient to authorize the engineer to change the dam from one of masonry to an earthen dam with a masonry core. 19 § 13. Estoppel of Owner.-It must not be supposed that the owner can, under any and all circumstances, when the architect has exceeded the limits of his agency powers, escape responsibility if by his conduct he has impliedly ratified his agent's acts, or so acted himself as to cause others to reasonably suppose that the acts of the agent were with his approval, and so estopped himself from claiming, certainly as to third parties, that the acts were in reality without his sanction or authority. So, where alterations are ordered by the architect in the presence of the owner, who 19 The National Contracting Co. v. Hudson River Water Power Co., 192 N. Y. 209. does not then demur or question them, the authority of the architect to order such alterations is presumed, and this even though in the contract it be provided that any orders for alterations must be in writing.20 Similarly if the architect, during the progress of the work, has made repeated changes in the plans which the owner has ratified and approved, and the architect makes further extensive changes and alterations, the contractor is justified, by the actions of the owner, in depending on the architect's authority as to these final changes and alterations and the owner, who has received the benefit thereof, cannot successfully defend an action by the contractor, on the ground that the architect has exceeded his authority.21 The architect in his capacity as superintendent, may be considered the agent of the owner within the scope of his authority,22 but he is the agent of the owner for the purposes only of the contract in connection with which he is employed.23 § 14. Delegation of Powers-The General Rule. As in the case of an attorney or special trustee, so in the case of an architect, his employment is based upon personal trust, and upon confidence in his honesty, ability and skill. He cannot 20 Perry v. Levenson, 82 N. Y. A. D. 94; affirmed, without opinion, 178 N. Y. 559. 21 Jackson Architectural Iron Works v. Rouss, 39 St. Rep. 359, 15 N. Y. Supp. 137—judgment affirmed without opinion, 133 N. Y. 538. 22 Vanderhoof v. Shell, 42 Oregon 578; Brin V. McGregor (Tex. Civ. App. 1898) 45 S. W. 923; Kilgore v. Northwest Texas Baptist Educational Society, 89 Tex. 465. 23 Richard v. Clark, 43 Misc. (N. Y.) 622. |