pensation, or, if no such implied agreement be shown, competent upon the question of what a reasonable compensation under the circumstances would be; but unless, in some way, an agreement by the owner, express or implied, can be deduced from the circumstances under which the services. are rendered, such custom or usage can, as binding him, have no force or effect whatsoever.

14

§ 29. Illustration of Rule.-A rather famous case in which this doctrine is enunciated and in which Mr. Melville W. Fuller, afterward Chief Justice of the United States, appeared as counsel for the plaintiff, was decided by the Supreme Court of the United States in October, 1880.1 In that case, the County of Cooke and the City of Chicago, proposing to erect a building to combine a new court-house and city-hall, to be used and paid for respectively by the county and by the city, offered a premium for plans. The plaintiff furnished a plan accordingly and received the compensation promised. No additional contract between the parties was entered into. The city and county each adopted a resolution formally selecting the plan of the plaintiff, subject to such modifications as might thereafter be determined upon in the event that the plaintiff's estimate of the cost of construction should be verified. plaintiff testified that thereafter he had verified the cost of the construction in the customary and usual way, and produced his plans and offered to prove their value and the time employed and the

14 Tilley v. County of Cooke, 103 U. S. 155.

The

expense incurred in the preparation of them. This evidence the Court excluded. The plaintiff further offered to prove that, by the usage and custom of architects, in the absence of a special contract, the superintendence of the construction of a building should be given to the architect whose plans were adopted. The Court likewise refused to allow him to submit evidence on this point. He then offered to prove that in accordance with the custom and usage of architects, in cases where prizes for plans submitted as his had been were offered, the plans were the property of the successful competitors and belonged to them, and if they were subsequently adopted as the plans in accordance with which the building should be constructed, were always paid for, independently of the special prize itself. This evidence likewise was excluded, as was also his evidence offered to establish the value of services in verifying the cost of the proposed building, according to his plans. The Court below directed thereupon a verdict for the defendants and the case came before the Supreme Court by writ of error from that judgment. It did not appear that the plans of the plaintiff were used by either one of the defendants or that the building in connection with which they were prepared was ever erected. In substance, the plaintiff's claim was that, by virtue of the adoption of the resolution by the city council and county board, the city and the council were bound, without any further act on the part of the plaintiff, or further assent on his part, to

proceed and erect the building in accordance with his plans and the estimated cost. It did not appear that the services of the plaintiff, in verifying the cost of the proposed building in accordance with his plans, were rendered at the instance or request of the defendants or either of them, and hence a statement of facts was not shown as a result of which the law would imply a contract to pay for these services. The Supreme Court held that:

"In this case, there being only an expression of purpose by one party to erect a building according to plans antecedently made by another and no obligation entered into by the other party, and no plans used or building erected there was no contract between the parties either express or implied. . . . Proof of usage can only be received to show the intention or understanding of the parties in the absence of a special agreement or to explain the terms of a written contract 15

"In all cases where evidence of usage is received, the rule must be taken with this qualification, that the evidence be not repugnant to or inconsistent with the contract . . .16

"The inference from these principles is inevitable, that, unless some contract is shown, evidence of usage or custom is immaterial.

"The offer of the plaintiff to prove certain facts having been rejected, he must be presumed to be able to prove what he offered to prove. We must, therefore, assume

15 Citing, Hutchinson V. Tatham, Law Rep. 8 C. P. 482; Field v. Lelean, 30 L. J. Ex. 168; Baywater v. Richardson, I Ad. & E. 508; Robinson v. U. S., 13 Wall 363.

16 Citing, Holding v. Pigott, 7

Bing. 465, 474; Clarke v. Roystone, 13 M. & W. 752; Yeats v. Pim, Holt N. P. 95; Trueman v. Loder, II A. and E. 589; Bliven v. New England Screw Co., 23 How. 420.

that the custom which he offered to prove did, in fact, exist. But what was that custom? Clearly, that if the building was erected according to the successful plans, the architect was entitled to pay therefor. That was such an acceptance and adoption of his plans as would give him. the right to compensation therefor, and the right to superintend the erection of the building and receive the usual remuneration. The custom certainly did not bind the party who offered prizes for plans, after having paid the prizes, to pay also for plans that he never used, and for superintendence of a building that he never erected, merely because he had selected a particular plan and announced his purpose to build in accordance with it. If such were the custom and usage of architects in Chicago, it was an absurd and unreasonable custom, and therefore not binding. . .17

"If the plaintiff had offered to show that after the passage of the resolution by which his plan was accepted, the defendants had erected their building according to his plans, then the evidence of the custom would have been pertinent. But he made no such offer, and it is to be presumed no such fact existed. The evidence of this custom was, therefore, properly excluded."

It is quite natural that variations of the ordinary problems in regard to compensation should arise in the practice of every architect, dependent on the special circumstances of each case. It is impossible to anticipate the exact state of facts which may in a special case be presented, but, whatever the situation may be, it will, in the vast majority of cases, be found to be governed by one or another of the broad general rules determining the right of the architect to payment for his services and prescribing the circumstances under

17 Citing, United States v. Buchanan, 8 How. 83.

which that payment can properly be demanded. In every case the broad underlying principles will be found to be that, where a definite agreement has been made, a recovery can be had in accordance with it if the architect has performed his part of the agreement, and if no definite agreement has been made, a recovery can be had for the reasonable value of the plans providing the architect is not in default and that nothing has been said or done by the owner, or by the architect, which introduces into the situation a new or additional element, such as the submission or acceptance of the plans on approval, or on the understanding that the work covered by them shall not cost more than a certain sum specified.

§ 30. Competitions.-It has been already noted. that where plans are submitted in competition on the understanding that payment is to be made only to the successful competitors, those who are unsuccessful can have no cause of action for their services; and also, that where they are submitted in competition, as in the Tilly case Supra, wherein the plans for the city hall and county courthouse at Chicago were concerned, on the understanding merely that a prize is to be awarded to the successful architect, but no further contract appears between the parties, the extent of the architect's claim is the prize specified. This situation, however, will be varied if other conditions are introduced into the contest. If, for instance, the plans are submitted in competition on the understanding that those meeting with