35 he must exercise that same reasonable care and diligence which is required of him in the preparation of his plans and in the supervision of the work of construction. This rule has been applied to circumstances where the contractor failed and, as a result of his failure, the owner was compelled to complete the work at an expense exceeding the amount of the balance due to the contractor. It appeared, in the case referred to, that the architect had given certificates in the amount of $2,950.00 when he should have only certified the sum of $2,295.00. The owner was allowed to deduct from the amount paid the architect for his services, the excess amount which he had paid to the contractor as a result of the error in certification. This doctrine of the liability of the architect in the matter of the issuance of certificates, based upon his neglect to use reasonable care and diligence, should be construed and read in the light of the fact that where no special manner of inspection is specified in the contract the courts, in at least one of the States, have held that there is no duty imposed upon the architect to make, before issuing a certificate, a special inspection of the work done, sufficiently detailed to satisfy him not only that the work covered by the particular certificate in question has been performed, but that it has been performed properly and in accordance with the contract require ments. 36 35 Irving v. Morrison, 27 C. P. (Upper Canada) 242. 36 Vigeant v. Scully, 20 Ill. App. 437. CHAPTER V DEATH OF ARCHITECT AND § 51. Death of Architect.-The contract between the owner and the architect, as in the case of any other contract or relationship of a professional character, is in its very nature personal, and it follows, accordingly, that where the architect dies before the work on which he is engaged has been completed, the right to complete the work does not survive to his executor, and that, on the other hand, the owner can not, under such circumstances, impose upon the executor a liability to perform it.' This rule does not mean, however, that where, under his contract with the owner, the architect has, at the time of his death, already earned and become entitled to a part of his compensation, the executor can not protect the estate in this connection; and where one employed as a consulting engineer had partly completed, prior to his death, the work on which he was engaged and, under his contract of employment, had earned certain of the installments in the form of which, quarterly, it was agreed that his compensation should be paid to him, his personal representative was allowed to recover from the 1 Stubbs v. Hollywell R. Co., Hall v. Wright, 96 E. C. L. L. R. 2 Exch. 311; and see 746. employer the amount of the installment which had been earned at the time of the death of the engineer.2 § 52. Ownership of Plans.-Whether the plans prepared by the architect are to be considered his property, or the property of his client, is a question of long standing between them. As a practical matter the architects, by insisting on their claim that the plans are their property,, seem to have induced the public generally to acquiesce in this point of view. As a matter of fact, however, unless there be a specific provision in the contract whereby it is agreed that the plans are to be and remain the property of the architect, they must be legally considered, it seems, as the property of the employer who has ordered, accepted, and paid for them. This is on the perfectly logical theory that the plans are an essential part of the building contract, and that while the architect, under the rule that work embodied in some material form and resulting from an individual's mental conception and labor is to be considered the property of the one creating it, has property rights in the plans prepared by him, yet when these plans have been prepared, pursuant to his employment, and the services expended in their production have been paid for, and the plans published to the world by filing or otherwise, the right of ownership in 3 2 Stubbs v. Hollywell R. Co. L. R. 2 Exch. 311, supra. 3 Moffatt v. Scott, 8 L. C. Jur. 310; Windrim v. Phila delphia, 9 Philadelphia, Pa. 550; Wright v. Eisle, 86 N. Y. A. D. 356. the plans passes from the architect to the client who has employed him. The New York court has stated the matter well in the case last cited,* where, citing and quoting from a decision affirming the rule that 5 "Every new and innocent product of mental labor which has been embodied in writing or some other material form," is "the exclusive property of its author, the law securing it to him and restraining any other person from infringing his right," the Court goes on to say that, nevertheless, where the architect prepares plans and specifications and files them with the Building Department and superintends the construction of the house and receives his compensation, he has, thereby, "published his work to the world and can have no exclusive right in the design or in its reproduction. . . It seems to us that all of the property rights in these plans, if they had any value as property after the publication, belonged to Litson (the client), rather than to the plaintiff (the architects) in this action It is of interest to note that Article 7 of the new Standard Form of the General Conditions of the Contract, issued by the American Institute of Architects, and included in Appendix B, provides that: "All drawings, specifications and copies thereof, furnished by the architect, are his property. They are not to be used on other work and, with the exception of the signed contract set, Wright v. Eisle, 86 N. Y. A. D. 356. 5 Palmer v. DeWitt, 47 N. Y. 532, citing Shortt on the Law of Literature, 48. are to be returned to him on request, at the completion of the work. All models are the property of the owner." While the parties to the construction contract and general conditions are the owner and the contractor, rather than the owner and the architect, the provisions quoted are nevertheless indicative of a realization of the necessity of a definite agreement in regard to the plans, if the rights of the architect therein are to be properly protected. To prevent the urging of the possible argument that as between the owner and the architect, unless the latter be a party to the contract and general conditions, there would be no consideration for the agreement of the owner recognizing the property rights of the architect in the plans, it is advisable that a memorandum of agreement in this connection be entered into direct between the architect and the owner. Under such circumstances, no such technicality could be urged to defeat the intent of the parties as outlined in the agreement between them. |