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the approval of the committee are to be selected as the plans for the building and that the architect submitting the successful plans shall be appointed the architect and the superintendent of its construction, the architect whose plans are, under such conditions, accepted in the competition, has a definite right to be employed as the architect of the building and as superintendent of its construction, and has a right of action for a refusal to so employ him.18

§ 31. Proper Care and Skill Required.-Another question which may be of vital importance in determining the right of the architect to recover is the question whether, in his services rendered, he has exercised that proper care, skill and ability which, from his membership in his profession and his technical training, he is presumed to possess. If he allow the building to be erected in a manner which he knows or, from his training, should know to be improper, he cannot re

cover.

This rule would seem to apply where an architect, after a personal examination of the site suggested, has allowed a building to be erected thereon, when his training should have warned him that the site, on account of the poor composition of the soil or for other reasons, could not properly support the building or would be entirely unsuitable for the purposes proposed.18a The situation would be altered if the architect, after an examination

18 Walsh v. St. Louis Exposition, etc., Assn. 90 Mo. 459, affirming 16 Mo. App. 502.

18a Moneypenny v. Hartland, I C. & P. (Carrington & Payne) 352, 2 C. & P. 378.

of the site, warned the owner that, in his opinion, it was not suitable and the owner, with full knowledge of the facts thus brought to his attention, directed him nevertheless to proceed. Under these conditions the owner would be assuming the risk personally, and the facts would present a very different case from that which is presented where the architect, knowing the defect, keeps silent and allows the building to proceed, or is so negligent that he fails to detect the defect at all.

§ 32. Modification of Contract. It will sometimes happen that a contract specific in its terms as respects compensation will be modified by a new contract, in which no specific rate of compensation is agreed upon, and the new contract may, under such circumstances, take the place of the old. So, where a contract, definite in its terms as respects compensation, was entered into and was subsequently changed so as to make provision for plans of a more extensive character than those originally contemplated, but did not specify in its modified form any rate or amount of compensation, the architect was allowed to prove, on the theory of quantum meruit, the reasonable value of the plans prepared and of the additional services rendered by him.10 In this connection it must, however, be borne in mind that the law does not allow a written agreement to be varied by a parol agreement, and that an instrument, to be effective to modify another, must be executed

19 Marcotte v. Beaupre, 15 Minn. 152.

with the same formality as the instrument which it attempts to modify.

If the owner direct that changes be made in the plans or in the building, after the contract for the work has been awarded, or during the progress of the work, and the architect performs additional services in revising the plans or in superintending the extra work, made necessary by the changes directed by the owner, he may recover for the value of his services in changing the plans,20 and in superintending the work done; 21 and it is not necessary, it seems, that he shall have given to the owner any notice that he expected additional compensation for such extra work.22

§ 33. Rescission of Contract by Owner-Preliminary Sketches.-Another situation of special interest to the architect as affecting his right to compensation, and one which arises with comparative frequency, is that which is presented when the owner, after the services agreed upon have been in part performed, rescinds the contract, or expresses his determination to proceed no further with the work. If his determination not to proceed with the building is based upon the fact that it has been agreed that the building shall not cost more than a certain sum, and that the estimates show that the limit will be exceeded, the architect, as has been seen, will, if this be

20 Johnson v. O'Neill et al., 148 N. W. (Mich. 1914) 364, and see Baker v. Publishing Co. (Missouri 1903), 77 S. W. 585.

21 Smith v. Bruyere, 152 S. W. (Tex. 1913), 813.

22 Smith v. Bruyere, 152 S. W. 813, supra.

true, have no remedy. But where some such element is not introduced, the architect will have the right to recover for the services which he has rendered, together with damages in an amount sufficient to justly compensate him for such injury as he has sustained by reason of the breach of contract on the part of the owner. Where, therefore, a client requests an architect to proceed and prepare sketches and the architect does so and delivers the sketches, and the client then notifies him that he has changed his mind and does not care to proceed, the client cannot, by such notification, escape his liability to make payment for the sketches prepared, as the notice serves only to prevent the preparation of additional plans.

§ 34. Illustration of General Rule.-This general rule has been clearly stated by the Appellate Division of the New York Supreme Court, which, reversing a judgment in the court below in favor of the owner, has held specifically that, under circumstances such as those stated, the architect has a definite right to recover for the preliminary sketches prepared.23 The Court said:

"The plaintiff did not claim to recover for completed plans and drawings, but only for preliminary sketches, and we are inclined to think that, on the evidence introduced, the jury would have been authorized to determine that the preliminary sketches, which were shown to the defendant at the time he claimed to have rescinded the contract, were completed, and that the only effect of his

23 Pierce v Thurston, 40 A. D. (N. Y.) 577.

countermand, at the time in question, was to prevent the plaintiff from going further and making complete plans and drawings.

...

"It is true that the defendant could at any time countermand his order for preliminary sketches (Clark v. Marsiglia, I Den. 317; Lord v. Thomas, 64 N. Y. 107, 109, 110), and that the plaintiff could not recover for work done thereon after such countermand. But the evidence introduced on the trial was such as to authorize a finding by the jury that the plaintiff was employed by the defendant to make the preliminary drawings in question, and that he commenced at once and completed them. The defense interposed by the defendant, that he countermanded the order on the Monday following the day that it was given, was an affirmative one. A countermand did not defeat the plaintiff's recovery unless given before the work was completed. It was for the defendant to show an effectual countermand-one given before the drawings were finished. This he failed to do. The burden was upon the defendant, asserting as an affirmative defense to the plaintiff's claim a rescission of the contract under which the plaintiff claimed, to show that such rescission was made before the work which was shown by the plaintiff to have been done by him was finished."

§ 35. Cannot Compel Client to Complete.-In some instances where one who has employed others to perform certain services has notified them of his desire that no further services be performed prior to the completion of the services contracted for, attempts have been made to compel him to permit the work to be completed. It has been definitely determined, however, that, while a recovery may be had for the breach of the contract, the employer cannot be compelled to proceed with the completion of work which he has

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