"The plaintiff was bound to furnish the plans, specifications and elevations, and the mason was bound to lay out the work. In other but perhaps not plainer words, the plaintiff was bound to put down, and to show on paper, how every part was to be built, and the mason was to stake it out, measure his lumber, and make actual measurements on the ground and in the erection for such building. I do not think it was the duty of the plaintiff to measure the joists or timbers of which the different stories were to be constructed, and to determine by actual measurement that the ceiling of the first story had an elevation of thirteen feet, and the second had an elevation of eleven feet, or to measure the thickness and depths of the brick or stone walls. . . . The first story windows in the front parlor were to be sixteen inches from the floor, and the windows themselves were probably ten or eleven feet in height. The plaintiff came from day to day to superintend the progress of the work, and while thus superintending, was he bound to have ascertained that the window sills in the front parlor were two and three-quarter inches higher from the floor, than was authorized by the plan? To an inexperienced eye the difference would not have been perceptible; but should the knowledge and skill of a good architect at once have detected it? The testimony is not satisfactory to establish the affirmative of this proposition. Wm. Thomas, an archiect, says, 'that he does not consider that the building has been properly superintended. If it had been, the mistake would have been found out when the first story beams were on. Comparing the second story beams, I should have found it out.' Mr. Windham, an architect, thinks the difference in height between the parlor windows in front and in rear, ought to have been discovered as soon as they began to lay the brown stone in front. Mr. Ritch, on the other hand, also an architect, says, 'that it is impossible to say when the error should have been discovered. It might have passed the observa

tion of the architect, till the building was completed. It is an error likely to pass any one's observation. It would most likely pass his notice until the cornices were put up.' These were the only architects who testified on this point. It was proved by various witnesses that the plaintiff was diligent in his attendance upon the building. The respectable and intelligent referee who had the witnesses personally before him, and was able to form a better opinion of their intelligence and integrity than one who did not see them, must have held that the plaintiff was not bound to have discovered this defect. Mr. Traphagen testified that he told the plaintiff the balcony was too high, and that he said it was all right. He was one of the contractors for the mason work, and it was apparently a question whether the fault was on his part or that of the plaintiff. The referee did not rely on his evidence. He found that the plaintiff had bestowed as much personal attention upon the building as was necessary, and that the variations mentioned were not caused by carelessness, negligence or inattention on his part. I do not find it necessary to differ with him." 26

It will sometimes happen that a change of more or less importance which has been requested by the owner, as for instance a change in the location of gas or electric outlets, may be overlooked by the architect. If the change be spoken of and brought to the attention of the architect before the plans and specifications are approved and then these plans and specifications, not including the change, are examined and approved by the owner, the latter, by his approval, following his examination of them, may estop himself from later claiming damages from the architect for the latter's

26 Petersen v. Rawson, 34 N. Y. 370, at pages 372, 373 and 374.

failure to provide the change required. This rule would not be applicable to a situation where the owner, to the knowledge of the architect, signed the contract and approved the plans and specifications without reading or examining them, and in reliance on the assurance of the architect that everything necessary and desired had been included and provided for. Where the change is requested after the plans and specifications have been approved and the contract signed, it is the duty of the architect to see that the proper instructions of his client are carried out, the work under these circumstances being in the nature of an extra; and for negligence or improper skill or lack of diligence in carrying out the directions of the owner, the architect will be liable within the ordinary rule requiring the exercise by him of reasonable skill and diligence.

The architect cannot escape liability for damage resulting from steps taken subject to his direction or on his advice and approval, on the mere plea that he was not present when the damage resulted; and where a wall fell as a result of a jackscrew worked under the supervision of one employed by the owner on the advice of the architect, and subject to the latter's direction, and it was shown that the architect approved the use of the jackscrew, he was held liable in damages for the death of a workman as a result of the falling of the wall, despite the fact that the architect was not present at the time the accident occurred.27

27 Lottman v. Barnett, 62 Mo. 159.

§ 47. Negligence a Question of Fact.-The question whether there has or has not been negligence or want of skill in a given case is a question of fact and not of law; 28 but the matter of negligence, while a question of fact, and, consequently, a question for the jury, should not be left to the latter in such a way as to refer to them the question of what it is proper or improper in the broad sense for the architect to do, entirely unrestrained by the evidence or special circumstances of the case. Where, on the facts, it appears that the architect has used reasonable diligence, care, and skill, it is improper to leave it to the jury to decide whether he has properly performed his duties. 29

§ 48. Burden of Proof.-The burden of proof in a proceeding to recover damages for negligence or want of skill on the part of the architect is upon him who seeks to establish it.30 On the other hand, it is no answer to a charge of negligence to plead reliance on the statements of others.31

§ 49. Architect as Arbitrator.-In many cases the architect will, under the terms of his contract, be called upon to act as referee or arbitrator in the

28 Straus v. Buchman, 96 N. Y. App. Div. 270; Hubert v. Aitken, 15 Daly (N. Y.) 237; 19 N. Y. St. Rep. 914; 2 N. Y. Supp. 711, affirmed (on re-argument) 5 N. Y. Supp. 839, 15 Daly (N. Y.) 241, affirmed by Court of Appeals, 123 N. Y. 655.

29 Vigeant v. Scully, 20 Ill. Apps. 437.

80 Gilman V. Stevens, 54 How. Pr. (N. Y. Supr. Ct.) 197 at 207.

31 Moneypenny v. Hartland I C. & P. (Carrington & Payne) 352; 2 C. & P. 378; Hubert v. Aitken, 15 Daly (N. Y.) 237, judg. aff'd, 123 N. Y. 655, supra.

determination of some question arising during the progress of the work. In such an event a new rule of law is to be considered, namely, that a judicial officer is not liable in matters connected with the exercise of his judicial duties, provided, and so long as, he exercises these duties honestly. This rule includes not only judges of courts, but all officers in general who are necessarily called upon to exercise duties of a judicial or quasi-judicial nature or duties to be performed in accordance with the dictates of their judgment.32 Where, therefore, an architect "undertakes to give a decision as to any matter, though he may not be an arbitrator in a strict sense of the word, and is not bound to exercise all the judicial functions an arbitrator would have to exercise, nevertheless, he is not liable to an action for want of skill." 33

§ 50. Certificates.—Many of the more important questions, of interest to the architect in the matter of the issuance of certificates, arise as between him and the builder, or in actions by the builder against the owner to recover the contract price. These questions are considered elsewhere.34

The architect is, however, under certain definite duties and liabilities to the owner with respect to the issuance of certificates and, in issuing them,

32 Jones v. Brown, 54 Iowa 74; Pappa v. Rose, L. R. 7 C. P. 32; I Eng. Rep. 87, aff'd L. R. 7 C. P. 525, 3 Eng. Rep. 375; Wait, Eng. & Arch. Jur. 8844; Mechem on Public Officers, §§ 638-639.

33 Wait, Eng. & Arch. Jur., §846; Pappa v. Rose, L. R. 7 C. P. 32, 525, supra.

34 See §§ 11, 55, 66, 95, 97, 98, 99, 114.