and at a cost meeting and consistent with the requirement as to the stipulated maximum cost or the estimate submitted, he will be entitled to his compensation.

In a leading case on this last point, decided in Iowa, the architect, in consideration of a three per cent. commission, agreed to furnish preliminary sketches and complete working drawings and specifications, to superintend the building operations and to make settlement of all accounts. He prepared the plans and specifications and was proceeding to carry out the other provisions of his agreement when the owner announced his decision not to proceed with the building. It appeared that the parties contemplated a building to cost not more than $10,000, and that the plans and specifications as originally prepared entailed an expense in excess of $16,000. Subsequently, finding that the cost would reach this sum and thus exceed the $10,000 contemplated, the architect suggested certain changes which would bring the cost within the contemplated $10,000 limit. The drawings were then accepted by the owner. The Court held that the architect could recover for his services in preparing the plans and specifications and that the fact that the drawings, as at first prepared, called for a $16,000 building was, under the circumstances, no bar to the right of recovery. It should be noted that in the foregoing case there was a direct acceptance of the plans by the owner, which of course strengthens the position of the architect; but the doctrine, as

laid down, is nevertheless clear, that an architect by suggesting changes whereby the cost is reduced within the amount specified may place himself in a position where the owner cannot rightfully refuse payment on the ground that the cost exceeds the amount specified or estimated. Of course, such suggestions for modifications, whereby a reduction in cost is to be effected, must be made in practical form, in good faith, and with reasonable promptness; they will not have the same favorable effect, from the standpoint of the interests of the architect, if made tardily or after the claim has been pressed and a recovery for services sought.

In the event that the fact that the cost exceed, in a given case, the stipulated maximum, is due to the interference of those by whom the architect is employed, and the endeavor of the latter in good faith to meet their demands in regard to the building these demands necessitating a more costly building than contemplated-and a building of no particular character is specified, the architect may

§ 26. Necessity of Delivery.-In order to entitle the architect to recover for the plans prepared it must be shown that they have been delivered or that the delivery of them has been prevented or waived by the owner. Mere preparation of them in the office of the architect, if they are not delivered to the client who has ordered them or in

7 Marquis v. Lauretson (Iowa Sup. Ct. 1888), 40 N.W. 73.

8 Coombs v. Beede, 89 Me. 187, 36 Atlantic 104.

accordance with his directions, will not ordinarily charge him with any liability to make payment for them, inasmuch as he has not received any benefit from their preparation."

Where an architect was directed to prepare plans for a theater, and he accordingly prepared a sketch and delivered it to the defendant, and the defendant kept it for a week and expressed his approval of it and told the architect to make the plans, and went so far as to have his builder call on the architect at the owner's request and take the plans and make and deliver to the owner an estimate based upon them, the plans were held to have been clearly delivered and the architect's right to recover for the value of his services was sustained.10

Under the foregoing circumstances, all the general elements necessary to allow a recovery were present. There was not a specific contract, but the plans were prepared by the architect at the request of the defendant and there were no special conditions upon which the defendant stipulated that payment should be made. Having taken the plans and caused the architect to perform the services in question, at his request, he could not then refuse to pay for them, and this, entirely irrespective of whether they were used by him or not..

Kutts v. Pelby, 20 Pick. (Mass.) 65; Wandelt v. Cohen, 15 Misc. (N. Y.) 90; Resher

v. Frères des Ecoles Chrétiennes, 34 L. C. Jur. 89.

10 Kutts v. Pelby, 20 Pick. (37 Mass.) 65, supra.

§ 27. Delivery and Acceptance Distinguished. -A delivery to, or the receipt by, the owner of the plans, however, must not be confused with an acceptance. It is quite possible that even if they are properly prepared and delivered, the owner may, on some pretext or another, or for some reason, valid or invalid, as the case may be, refuse to accept them. If the work has been properly done and the architect has complied with his agreement, the refusal by the owner to accept will not relieve him from liability and the acceptance is not, therefore, under such circumstances, necessary to complete the right of the architect to receive compensation for his services; " but in the event of special conditions in the agreement, or of special circumstances under which the plans are submitted, acceptance may become of prime importance. Where, for instance, plans are submitted on approval, or are submitted in competition with plans prepared by others and on the understanding that the plans which are accepted are to be the ones for which payment will be made, no recovery can be had if the plans are not accepted, inasmuch as acceptance under these circumstances, is a condition precedent to the right of the architect to recover.12

11

In the case, too, where an architect solicits the work of superintending the building and, of his

11 Canfield (New England Monument Co.) v. Johnson et al., 144 Pa. State 61, 22 Atlantic 974.

12

2 Audsley v. The Mayor, 74 Federal 274; Allen v. Bowman, 7 Mo. App. 29; Walbank v. Protestant Hospital, 7 Montreal Q. B. 166.

own initiative and not at the request of the owner, leaves sketches with the latter in the hope that his doing so may result in his securing the employment sought, and the owner returns the sketches and neither accepts them nor makes use of them, no recovery for them can be had.13 This is on the theory that the services were not rendered at the request of, or sought by, the owner, but were purely voluntary and at the instance of the architect alone, and for the purpose of inducing the owner to employ him to superintend the work. If the owner were to keep the sketches or make use of them, even though he had not sought the services of the architect in the first instance, and even though the services had not been performed at the request of the owner, payment for the sketches could be demanded for the reason that, having received the benefit of them, and retained and so accepted them, the owner could not refuse to reasonably compensate the architect for the services involved.

§ 28. Necessity of Actual Contract-Custom Alone Insufficient to Sustain Recovery.-In the event that no contract of any character-no meeting of their minds-either in express terms or by implication, can be established between the owner and the architect, no amount of custom or usage can place upon the owner a liability to pay for services rendered. The evidence of custom or usage may be competent either as tending to show an implied agreement to pay a reasonable com

13 Allen v. Bowman, 7 Mo. App. 29.