therefore, without express authority or permission so to do, delegate his authority to another. This is in accordance with the old agency maxims of delegatus non potest delegare and delegata potestas non potest delegare. In one State at least these have been so strictly applied as to forbid the architect from delegating his authority as arbitrator to his partner without the consent of his employers.24

§ 15. Limitation of Rule.—When a firm is employed, as a firm, and dependence is not placed specially upon one member of the firm, the foregoing rule would not apply, and where an architect's partner has been in charge of the work and has been recognized by both the owner and the contractor as being so in charge, he can by signing an arbitration provided for in the contract bind both parties, although his individual name does not appear in the firm title and is not mentioned in the contract.25 In any event if the parties mutually consent there can be no objection to the architect delegating his authority to another, and, of course, the parties themselves may waive conditions in the contract which, without express authority, the architect could not waive.2

24 Wright v. Meyer (Tex. Civ. App. 1894), 25 S. W. Rep.

II22.

25 Wymard v. Deeds, 21 Pa. Super. Ct. 332.

26 Smith v. Molleson, 148 N. Y. 241; Wagner Co. v. Cawker, 112 Wis. 532; Bannister v. Patty's Exec's, 35 Wis. 215;

26

McPherson v. Rockwell, 37 Wis. 159; Boden v. Maher, 105 Wis. 539; Wambald et al. v. Gehring, 109 Wis. 122; Page on Contracts, § 1468; Weatherhogg v. Board of Commissioners of Jasper County, 158 Ind. 14.

The rule delegata potestas non potest delegare must not be taken as meaning that there are no details of the work which an architect can properly delegate to others, for it is manifest that it would be impossible, as a modern architect's office is conducted, for the architect to personally attend to every detail, no matter how slight or trivial. There are many duties, of a more or less ministerial and clerical character, which can and indeed must be delegated, if the work is to be carried forward with despatch, and without undue interference with other work in hand. The general rule is well stated in an early English decision where it is said that "Where a man employs an agent relying upon his peculiar aptitude for the work intrusted to him, it is not competent to that person to delegate the trust to another. But, where the act to be done is of such a nature that it is perfectly indifferent whether it is done by A or by B, and the person originally intrusted remains liable to the principal by whomsoever the thing may be done, the maxim above referred to (delegata potestas non potest delegare) has no application." 27 In another and comparatively recent English case, in which the decision of the Master of the Rolls was upheld, the statement of facts and decision are in point: "By the terms of the contract the architect could order the removal of any materials used in the building that appealed to him as not up to the specified quality. What the architect actually did

27 Hemming v. Hale et al., 7 C. B. N. S. (Common Bench, New Series) 487.

was to examine the wood on the ground, and, finding that it was not of the required quality, he directed the clerk of the works to mark the timbers already put in the roof of the sorting house to which he objected. Upon that gentleman's report, the architect framed his certificate, and the question was whether in these circumstances the architect could be said to have adjudicated on the matter. It was perfectly obvious as a matter of business that one could not expect an architect to go into every detail himself and he (the Master of the Rolls) had no hesitation in holding on the authorities that the architect, having himself first ascertained that the timber being used was not of the stipulated quality, was perfectly entitled to delegate the duty of particularizing which of the timbers had to be removed." 28

§ 16. Due Care Required in Delegation of Authority. In delegating his authority the architect should be careful to delegate it to one in whom he can reasonably feel entire confidence as by placing more than a reasonable amount of confidence in the clerk to whom the authority is delegated he would, by reason of his negligence in so doing, render himself liable for any damages occasioned the owner by reason of the incapacity of, or improper performance of his duties by, the clerk.29 The architect must remember that it is always he

28 A. M. Brice "The Legal Authority of the Architect as an Agent," quoting Graham v. The Commissioner of Works,

Builder, Nov. 15, 1902, p. 456.

29 A. M. Brice, supra, citing Lee v. Lord Bateman. Times, October 31, 1893.

himself who is the agent of his client and that while he may delegate such details as it is proper and reasonable that he should, the responsibility remains his and the owner has the right to look to him and to him alone for the proper performance of his duties as architect.

§ 17. Power to Act in Emergencies.—The question often arises whether, under circumstances of sudden necessity or exigency, the architect may order extra work to be done or steps taken, under the powers conferred upon him in the ordinary case. If a beam break, for instance, is the architect authorized to have emergency measures taken, at once, and without consultation with the owner, for the safety of the other details of the work and of the building?

It has been stated that whether an agency "is conferred in the one way or the other (viz., orally, or in writing), it is, unless the contrary manifestly appears to be the intent of the party, always construed to include all the necessary and usual means of executing it with effect." 30 And in a leading case in New York State, the rule is held to be that "whatever may be necessary to complete an act an agent is authorized to perform is included within the authority of the agent.' Following this rule and the rule that an architect has authority to proceed in the usual way,32 it has

" 31

82 Moon v. Guardians of the Poor, 3 Bingham's N. Cas., 814.

been stated that an architect is able in an emergency and unforeseen circumstances, to bind his employer for extra work and materials and to disregard the letter of the original agreement where such extra work and materials, although a variance from the terms of the agreement, are, nevertheless, necessary to secure the safety and the security of the building.

33

It does not seem safe, however, to accept this as the approved general rule. The Indiana case of Gibson County v. Matherwell, etc., Co., referred to by Mr. Clark, as above noted, is itself decided on a state of facts showing that the building was accepted by the owner, and in both this and other respects does not seem to justify the broad doctrine for which it has been cited, and there are varying views in most respectable jurisdictions.34

While the courts may be inclined to stretch a point here and there to relieve the architect where he has acted, probably for the best, under circumstances of sudden necessity, they recognize, nevertheless, the danger of any general opening of the door, to an extent which might be taken advantage of to unduly broaden the rules which experience has shown it to be wise to adopt in limitation of the implied powers and authority of an agent.

§ 18. Dangers of Implied Authority.-An architect in ordering extras or alterations or ad

33 Clark on Architects, p. 82, citing Gibson County v. Matherwell Iron, etc., Co., 123 Ind. 364.

84 Stuart v. Cambridge, 125 Mass. 102; compare Art. 18, general conditions, Appendix B, p. 230.