“But we think it was error to submit this question to the decision of the jury. When it was conceded that the plaintiff's assignor had not followed the plans in this respect, and it appeared that the failure to put in the stone skew backs may have caused the loss, which the plaintiff is seeking to impose upon the defendants, they were entitled to a ruling as a matter of law, that the plaintiff could not recover, and the complaint should have been dismissed. He had failed to establish a performance of the conditons precedent, which was essential to the support of his cause of action. One of the principal allegations of the complaint had been left unproven. The action is ex contractu, and the defendants cannot be made liable upon a contract which they never assented to. There is no principle upon which a case of this kind can be excepted from the rule, so firmly established, that every stipulation which the parties have inserted in a contract by way of conditions to be performed is to be deemed material . . .10 10 The plaintiff's assignor was contracting for the exercise of the technical knowledge and skill of the defendants, and it was upon the infallibility of their own judgment that the defendants relied when they made their guaranty that if the arch was constructed in accordance with their directions it would stand. They regarded a stone skew back of vital importance for its security and stability, and their promise to make good any loss which might occur if it fell, was upon condition that this method of construction was adopted, and we are not permitted to say that they would have entered into the agreement had they known that these essential supports were to be omitted. "It is not necessary to hold that a literal performance 10 Citing, Dauchey v. Drake, 85 N. Y. 407; Hill v. Blake, 97 id. 216; Tobias v.Lissberger, 105 id. 404; Bank of Montreal v. Recknagel, 109 id. 482; Clark v. Fry, 121 id. 470; Norrington v. Wright, 115 U. S. 188; Glaholm v. Hays, 2 M. & G. 265. of the condition was required. A variance, confessedly immaterial, or a departure from the plans in a separate and independent part of the building, having no structural relation to the defective member, would present a different case for our consideration. But where the variance is not disputed, and involves the integrity of the mode of construction of the affected part, and is so far material that it may have been the direct cause of the injury for which the owner seeks to hold the architect responsible, it must be held, we think, that the plaintiff has failed to establish the cause of action upon which he relies." 11 In another State the Court seems to have gone so far as to substantially assume, as a matter of legal inference, that the architect is negligent where the walls of a building crack on account of a defective foundation; 12 but the New York doctrine would seem certainly to be the more equitable, safeguarding as it does the architect against claims for damage occasioned through no fault of his own, considering fully each case in the light of the special facts developed, and keeping more clear the distinction between the architect and the owner and the particular duties of each, in determining whether the damage is or is not traceable to a lack of skill or neglect on the part of the architect. § 45. Repairs and Superintendence.—Where, on account of defects or of some oversight on the part of the architect it is necessary that repairs be made, the claimant cannot make these repairs 12 Schreiner v. Miller, 67 Iowa 91. 11 Lake v. McElfatrick, 139 N. Y. 349 reversing 46 N. Y. St. Rep. 437, 19 N. Y. Supp. 494. at an unnecessary expense, or in an unnecessarily extravagant form, and recover as damages the amount of his disbursements in so doing. He must confine his claim to such sum as will represent the cost of effecting the repairs as economically as it is possible to effect them, consistent with proper workmanship and construction. It must always be borne in mind, also, that the architect does not guarantee satisfaction, and that in the absence of special circumstances or agreements, his duty is fulfilled when he has prepared the plans and carried out the provisions of his contract with reasonable skill, diligence and care. § 46. Reasonable Care and Diligence Required -Illustrations of Rule.-The rule requiring the exercise of reasonable care and diligence on the part of the architect in the preparation of plans 13 is equally applicable to his position as superintendent.1 If such reasonable care and diligence be not observed, the architect will be liable to the owner for any damage which may result to the latter by reason of such neglect.15 It is not necessary that the architect give to the matter of superintendence more than reasonable and ordinary care, or exercise therein more than reasonable and ordinary diligence; nor do ordi 18 Johnson v. Wanamaker, 17 Pa. Sup. Ct. 301. 14 Straus v. Buchman et al., 96 N. Y. App. Div. 270; Gilman v. Stevens, 54 How. Pr. (N. Y. Super. Ct.) 197; Mer riman v. Fowler, 37 N. J. L. 89; Coombs v. Beede, 89 Me. 187. 15 Merriman v. Fowler, 37 N. J. L. 89; Lottman v. Barnett, 62 Missouri 59. nary care and diligence require that he superintend the work so closely as to follow every movement of every workman, and be able to discover all variations of every character from the contract provisions and all defects in execution, including such defects as can only be detected by the exercise on his part of extraordinary diligence. 16 To avoid the charge of negligence it is not essential that the architect prove the exercise of "the utmost skill such as only a few members of any profession attain to," but he must show what "other architects will generally consider to be a reasonable degree of professional knowledge and skill." 17 In this connection it should be noted that what might perhaps be a reasonable degree of skill in one locality, would not be in another. For instance, the degree of attention which an architect may properly give to country work, unhampered by city ordinances, would not be at all sufficient for work done in a large city, under local rules, regulations and building ordinances, which must be given strict attention by the architect, if he is to secure the rights of his client and the proper conduct of the work. It may happen that the superintendence of a 16 Petersen v. Rawson, 34 N. Y. 370, reversing 2 Boswell, N. Y. 234; Hubert v. Aitken, 15 Daly, N. Y. 237; Stewart v. Boehme, 53 Ill. App. Court 463; Vigeant v. Scully, 20 Ill. App. Court 437. 28. 17 Clark on Architecture, p. building will be in the hands of an architect who did not prepare, and had no part in the preparation of, the plans, but the fact that the plans were made by another architect before the superintending architect took charge, will not relieve the latter of responsibility for defects in the building as erected under his supervision; 18 and while the architect is not held to the necessity of preventing every slightest shade of variation from the plans and specifications, he must, nevertheless, bestow such care and attention as may be necessary to detect variations or faults which are of such a character as to be of real importance and materiality.19 The architect and the builder may be jointly and severally liable to the owner in the case of neglect attributable to them jointly. In New Jersey this doctrine has been applied to the extent of holding that, where a joint neglect by the builder and architect is proven, a suit may be maintained against the architect alone, and that the fact that the owner has, at the same time, held back from the contractor a part of the money due to the latter, upon the ground that the contractor is equally liable with the architect, will be no bar to the action against the architect himself.20 So where a floor has sunk on account of the insufficiency of timber used, the architect and the builder 18 Scott v. Christ's Church Cathedral, 1 L. C. L. J. 63. 19 Petersen v. Rawson, 34 N. Y. 370; Wait, Eng. & Arch. 20 Newman v. Fowler, 37 N. 1 |