It will be seen that there is a vast difference between these two theories of recovery. In the case of a definite contract the architect need not prove that the services are reasonably worth the amount claimed-all that he need prove is that the client agreed to pay him a certain sum in compensation for his services, that the services have been performed and that the agreed compensation has not been paid and is due accordingly. If he cannot prove such definite agreement then it is that he must fall back upon the quantum meruit count and ask compensation for the reasonable value of his services. If there has been a definite contract the fee agreed upon is, of course, just as controlling upon one of the parties as upon the other; that is, the architect, if he agree to serve for an agreed compensation cannot claim more, on the theory that the services are worth more, and, disregarding the existence of the contract, elect to recover on quantum meruit instead; and, similarly, the client cannot, under these circumstances, pay less than the amount agreed, where the services have been duly performed in accordance with the terms of the contract. If there be no contract a recovery may be had for the full reasonable value of the services rendered irrespective except in so far as this may be considered in determining the reasonable value-of whether their value is more or less than the amount which the architect might have been willing to accept, if a definite agreement had been entered into. In a case where the architect and owner enter into a definite contract covering the amount of the compensation to be paid, and the contract is performed by the architect and the building is completed in the ordinary course and without differences arising, there will be little room for any complications in regard to the architect's fee. But when the cases are reached wherein no definite contract is made, and preliminary sketches are prepared with no statements made and nothing said in regard to the matter of compensation; or, where special conditions regarding the character of the building or its cost are stipulated by the owner as terms of the contract; or where plans are submitted in competition, or where, after ordering the preparation of sketches and plans and specifications, the owner for one reason or another decides not to proceed with the contract, very different situations are presented-situations which in their very nature make it quite possible, and indeed probable, that differences of opinion will arise, as to whether any fees are payable, and if so, to what extent they are payable and in what amounts. § 22. Recovery in Absence of Special Conditions or Agreement.-An architect is no more an eleemosynary institution than any other professional or business man, and, in general and in the absence of such other circumstances or conditions as are noted hereafter, where a client requests an architect to prepare and furnish plans and the latter does so, he is entitled to be paid for his services.1 And unless at the time the order for the plans is given and the work on them is done it is agreed directly, or impliedly from what is said, that they are submitted on approval, or on conditions specified as to their acceptance, the client, by requesting their preparation and by receiving them, incurs a liability to pay for such of them as may be completed before the order is countermanded, and this entirely irrespective of whether the plans are ultimately used or not.2 $23. Effect of Specified Conditions.-Where the owner gives to the architect specific directions in regard to the character of the plans desired, the architect cannot recover unless the plans are made in accordance with the directions received,3 and the architect will at once imperil his right to recover for his services, if he disregards in any way any conditions which the client may have specified, in regard to the work to be done, or as terms of the contract between them. § 24. Conditions Re Cost.-There is no point perhaps in the question of compensation which should be approached more carefully by the architect, or which will more often be taken advantage 1 Smithmeyer v. U. S., 25 Ct. Cl. 481, judgment affirmed 147 U. S. 342; Maas v. Hernandez, 48 La. Ann. 264, 19 So. 269; Canfield (New England Monument Co.) v. Johnson et al., 144 Pa. St. 61, 22 Atl. 974. 2 Pierce v. Thurston, 40 App. Div. (N. Y.) 577, reversing court below; Nelson V. Spooner, 2 F. & F. 613; Kutts v. Pelby, 20 Pick. (Mass.) 65; Marcotte v. Beaupre, 15 Minn. 152; Driscoll v. Independent School District, 61 Iowa 426. 3 Smith v. Dickey, 74 Texas 61, 11 S. W. 1049. of to prevent recovery by him for his services, than the question of the cost of the building to be erected. It is entirely natural that the intending builder, when he first interviews the architect, should mention the probable cost which he has in mind, and it is natural too that the architect, in conferring with him, should make to him some statement, more or less definite, regarding the amount which a building of the character described by the client will probably cost. Any statements by the architect, or conversations between him and the owner, which can be construed either as an implied or express condition or warranty that the building can or shall be erected for a certain sum, or which can be construed as an estimate on the part of the architect of the probable cost of the building, may be fatal to his right to recover for his services, if the client sees fit to take advantage of the situation. In all probability the condition most frequently specified by the owner is that the plans are to cover a building which shall not exceed in cost a definite specified maximum. Where such a condition is prescribed, or where as a result of what has passed between the architect and the owner, the understanding can be said to be that the cost of construction shall not exceed a certain sum, or that the plans are accepted on condition that it shall not exceed such sum, no compensation can be recovered for the plans or for their preparation in the event that, as finally submitted, they cover a building 4 exceeding in cost the stipulated maximum amount. Again, if the architect submit estimates of the probable cost of the building, he cannot recover his fee for the plans prepared unless the cost of the building is reasonably close to the estimates submitted."5 § 25. Limitation of Rule.-Under these circumstances, however, where the architect gives merely the probable cost of the building, the mere fact that the cost exceeds slightly the estimate which he has made will not in itself defeat his recovery, for it is the province of the jury to determine whether the estimate submitted by the architect is reasonably near the actual cost of the building, and the architect has a right to have this question submitted to the jury for determination." If, also, the architect upon finding that the cost of the building, if erected in accordance with the plans prepared and submitted, will exceed the amount stipulated by the owner as the maximum amount which the building is to cost, or will exceed the cost as given in his estimate, submit suggestions as the result of which and by following which the work can be properly done at a less cost, |