cations, the superintendence of the work and the issuance of certificates.

It should be noted, preliminarily, that an architect is, in general, liable for want of care or skill in the execution of his work to his employer only, and is not liable to third persons for damages resulting from accidents or injuries sustained after the completion of the work. The legal distinction, in this connection, between a tort to a third person, predicated upon the omission of some act or obligation to the public as such, and a tort predicated upon a direct injury to a specific third person, has been well stated to be that, in the event that one "omits to do some duty or obligation which he owes to his employer and which is a tort to a third person, he is not liable, but when he commits a tort which is an injury to anyone, there is no reason why he should not be liable for his acts as anyone else." The writer so stating the rule cites as examples thereof a case, on the one hand, of a superintendent of a plantation who neglected and refused to keep open a drain on his employer's land, thereby flooding the lands of the neighbors and damaging them, and who was held not to be liable to the neighbors; and, on the other hand, the case of an architect in charge, who adopted a bad plan of construction, as the result of which, and by reason of his negligence, misfeasance and failure to observe the skill and care imposed by law, a disaster resulted, and who was

3 Mayor v. Cunliff, 2 N. Y. 165; Wait, Eng. & Arch. Jurisprudence, § 842.

held to be responsible in damages to the workmen injured, as well as to the contractor.*

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§ 40. Plans and Specifications.-It has already been noted that, as a result of defects in his plans, an architect may be debarred from recovering his compensation for them and it is also true that for these defects he may in addition be liable in damages. This liability, providing the defects upon which it is based would be patent to one skilled in the art though not apparent, perhaps, to one lacking such expert training, would not, it seems, be affected by the fact that the building had been accepted and the superintendence of it ratified."

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§ 41. Mistakes.-Where there are mistakes in plans and specifications which increase the cost of the building and which proper skill and care would have obviated, the architect is, apparently, liable; and likewise it has been held to be a breach of the duty which he owes to his employer, if he allow a foundation to be so constructed that it is not deep enough, or not protected sufficiently otherwise, to prevent the cracking of a wall which it supports.R

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§ 42. Negligence-Measure of Damages.-In an action to recover damages for the negligence of an architect in the preparation of plans, the

measure of damages has been fixed at an amount equal to the difference between the value of the building, as actually designed and constructed, and the value as it would have been, if the building had been properly designed and constructed.

§ 43. Limitation of Rule-Architect not Liable If Plans not Adhered To.-While the rule is clear that damages may be recovered which are the result of defective plans and specifications, yet it must not be supposed that such damages can be recovered if, in the erection of the building and without the fault of the architect, there has been a substantial variance from the plans and specifications as submitted by the architect. This is on the theory that an architect, in warranting the safety or proper construction of the building which he designs, warrants it on the assumption and understanding that all of the substantial conditions stated, shown, or included by him in the specifications, and which in his opinion may be necessary and essential to the proper construction of the building, shall be carried out and observed.

844. Burden of Proof-Illustrations of Rule. -Where damage of this character is claimed, the burden is upon the plaintiff to prove a substantial compliance with the plans and specifications. The leading case on this point and a case in which the law is stated at some length and with great clearness was decided by the Court of Appeals of New York State in October, 1893. In that case,

Larrimore v. Comanche County (Tex. Civ. Apps. Sep. 1895) 32 S. W. 367.

an action was brought against the architects (a firm) to recover damages claimed to have resulted by reason of defective plans, specifications, and drawings, prepared by them for an opera house. The sole defect complained of was in regard to the plan of the proscenium arch which was in segmental form, thirty-six feet long with a rise of eight feet. It was built of brick and, upon the removal of the cradle supporting it, fell, necessitating its reconstruction. In the court below, the plaintiff recovered as damages, a sum equal to the cost of rebuilding it and the added cost of repairing the injury which its fall caused to the other parts of the building.

The plaintiff, an assignee, based his claim in particular upon the failure of the defendants to make provision in the plans and drawings for a blind arch over the segmental arch, on the theory that if such had been shown and provided for, it would have been constructed and no damage would have resulted. The plaintiff gave evidence in the court below which tended to show that the fall of the arch might have been due to the fact that it was too flat and that the spring necessary for self-support in an arch of the width of the one in question, could not be given by a rise of eight feet therein. The plaintiff was also allowed to give evidence that the arch was so planned and constructed that its thrust fell without, instead of within, the abutments upon which it rested, and that its fall may have been due to this fact also. The plan of the arch required that

stone skew backs be put in at each heel, at the points where the arch met the abutments. It appeared that the purpose of these skew backs was to furnish a firm foundation for the arch and to distribute its thrust over a larger area of the abutments. One of the defendants, a man of large experience, testified to the preparation of plans for and the building of many theaters and opera houses and the placing in many of them of segmental arches having no greater rise than the one in question, without experiencing any difficulties, and he also testified that he always made provision in such plans for stone skew backs and considered them elements of vital importance to the support of the structure. It appeared that in building the arch in question these skew backs were omitted and that the responsibility for their omission rested with plaintiff's superintendent. Experts testified that skew backs of stone were necessary to the proper construction of the arch, bearing out the testimony of defendant on this point. The Court below submitted the question to the jury on the finding that the arch fell on account of the omission of the stone skew backs, holding that there was sufficient evidence to support a finding to that effect and instructing the jury that if they found this to be the case, the plaintiff could not recover. The jury evidently did not so find for they gave judgment for the plaintiff. Judge Maynard of the Court of Appeals in reviewing this decision said: