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ditions, by reason of the very fact of his employment as the agent of the owner, must, in many cases, impliedly represent himself as having authority to authorize the extras and changes directed, and, as it has long been recognized that an architect falsely representing himself as having authority to bind his principal for work and materials incurs a personal liability therefor,3 it is apparent that, with the best of intentions, the architect may, by a little excess of zeal or lack of care on his part, incur a loss far exceeding any possible compensation received by him from the work in hand. So, in the case of extras, he has no implied authority to authorize as extras work which should have been included or shown in his own specifications or drawings, nor work which, while not specified, is absolutely essential to the completion of the contract and for which it should have been the duty of the builder to make allowance in his estimate, knowing it to be essential; nor yet, may he, where his drawings are not practicable, order as extras the work necessary to make them practicable.36

§ 19. General Precautionary Suggestions.— There is but one way in which the architect can properly protect himself from the danger of incurring personal liability under one or another phase of his position as the agent of his client, and that is to exercise the utmost care not to ex

35 Randell et al. v. Trimen, 18 C. B. (Common Bench) 786.

36 A. M. Brice, "The Legal Authority of the Architect as an Agent."

ceed the express or implied authority which he knows himself to possess; not to act on any point where there is the slightest doubt of his full authority to act, without securing that authority; to take nothing for granted, but to be guided by the contract and by the authority which, orally or in writing, he has received; to refuse to take the chance that the owner will ratify what has been done, where it is possible to in any way communicate with the owner and secure his approval and assent; and wherever a point of ambiguity or uncertainty arises, to ascertain, before acting, just what construction, legally, is to be placed upon the provisions by which his authority and liability are specified, governed and determined.

It may well be that, as a practical matter, in many cases, a quick decision will be necessary and that it will be impossible to secure the approval of the client in advance, but so far as possible, nothing should be taken for granted or assumed on the point of agency if the architect would avoid complications and personal loss. If the contract or understanding under which he is acting does not clearly confer upon him such authority, express or implied, as a particular development may necessitate, let him, before acting, secure that authority if this be a possibility, in writing if practicable, if not, orally, in person or by telephone, in some form in any event. Only by doing this will he be protected, and only thus will he avoid the danger of suffering sooner or later, and, in all likelihood sooner rather than later, a loss which will

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more than counterbalance any advantages which he may have secured by taking chances in the past and by trusting merely to the sense of fairness of those employing him to save him harmless. And let him always, under any circumstances, be very critical of any authority which is by implication rather than express, even though the implication seem to his mind entirely clear and inevitable.

CHAPTER III

THE COMPENSATION OF THE

ARCHITECT

§ 20. Introductory.-The right of the architect to receive compensation for his work is naturally a matter of prime importance to him. If he is to be in a position to properly protect his rights in this connection, and at the same time avoid unnecessary and expensive misunderstanding and possible litigation, he should understand the theory upon which his right to compensation is based and the circumstances under which he may or may not rightfully demand and recover compensation for services rendered.

Matters which, to the lay mind, may seem of little or no importance may, in fact, prove to be determining factors in deciding whether or not the claim of the architect for compensation is valid and enforcible. A very few words or a very simple writing at the proper time may make his right to compensation entirely clear, while a failure to speak the words or to secure the writing may mean that, after the work of the architect has been done, some technical or other objection may be successfully urged as a bar to his recovery.

It is no less desirable that the owner shall un

derstand the terms and effect of his contract with the architect and the rules governing his own liability to reimburse the latter for services rendered.

§ 21. Theory of Recovery-Contract and Quantum Meruit.-The recovery by an architect for services rendered may be based either upon the theory of direct contract or upon the theory of what is known in the law as quantum meruit. If based upon the contract, the recovery is for the specified amount which by the terms of the contract the owner has agreed to pay the architect as his fee. If based upon quantum meruit the recovery is not upon the theory of a definite contract price, but for the reasonable value of the work done and services rendered. In the ordinary case of a suit for goods sold and delivered, for instance, the recovery may be for a certain number of yards of goods at an agreed price, of, say, one dollar a yard, or, if no price has been agreed upon, and the goods have been delivered and accepted by the defendant, the recovery may be for the reasonable value of the goods delivered, which may be a dollar a yard, or more or less. So, in the case of personal services rendered, if a definite commission or rate of compensation has been agreed upon, the recovery will be in accordance with the commission and rate thus established. If there has been no such definite agreement the recovery will be for such amount as will represent the reasonable value of the services rendered.

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