ment is libelous or not-and there are those who believe that in our American regard for free speech and a free press, we have not always accorded sufficient protection to the individual, against slander and against libel-these two cases well illustrate the importance in which the courts hold the trust obligations, if we may so term them, of the architect: in that, even where it does not appear that any damage has been occasioned the owner by the acceptance of a commission by the superintendent, nor yet that the mere acceptance of the commission is in itself to be taken as an improper act morally on the part of the superintendent, yet the requirement that one in the latter's position shall be free to carry out his duties without being influenced consciously or unconsciously by conflicting interests, is so insistent that the commission agreement referred to was properly held to be against public policy and consequently void.

Where the architect brings suit for professional services rendered and the owner, in defending, claims negligence on the part of the architect and it appears that the builder has made advances or loans to the architect, these advances and loans are properly provable by the owner as bearing upon the question of negligence alleged in the answer, no actual fraud having been pleaded.18 So too the duties of a building superintendent are of such a nature that it is not proper that he be appointed by or controlled by the contractor; and

13 Gilman v. Stevens, 54 Howard's Prac. (N. Y.) 197.

the inconsistency of the two positions is such that a contract for the employment of the contractor as superintendent of his own work will not be implied.14

If the architect accept employment from the contractor or builder this act on his part will in at least one jurisdiction be held to relieve the owner from any liability based on claims for extra work; 15 and where the architect prepared the plans and specifications and thereafter was made the contractor for the erection of the building, he was not allowed to claim that a defect in construction was one of plans and specifications and not of building, since he was responsible both for plans and for construction. 16

§ 5. Limitation of Rule-Estoppel of Owner. -While it has been seen that no private agreements or understandings between the architect and the builder will be countenanced, it should be noted, in limitation of the general rule, that, in cases where the circumstances are or must be known to the owner, the mere existence of an agreement between the architect and the builder will not be allowed to be interposed by the owner as a bar to a recovery by the architect for his services. Thus where the owners employ an architect to superintend the construction of a building of which he is, also, one of the contractors,

14 Friedland v. McNeil, 33 Mich. 40.

15 Day & Co. V. Pickens County, 53 S. Carolina, 46 at

16 Louisiana Molasses Co. v. Le Sassier et al., 52 La. Ann. 2070.

they are not allowed in an action by the architect to recover for his services as such superintendent, it appearing that the services have been properly performed, to plead, in defence that, by reason of his occupying the two inconsistent positions of architect and contractor, a recovery is barred on the grounds of public policy." Similarly, the contract of an architect with a builder, made with the knowledge of the owner and attached to the original building contract and recorded, is not to be considered as void unless actual fraud or deception be shown.'

18

§ 6. Assumption of Good Faith.-While the courts will not encourage or countenance any act by the architect inconsistent with his position of trust and responsibility they are, nevertheless, inclined to consider the architect, by reason of the very nature of his profession, honorable and single-minded in his employer's interest until the opposite be shown, and will not adopt a strained construction of his natural and entirely honorable acts. In accordance with this position a French court has refused to presume that the architect was employed by the builder from the fact that the builder went to the architect to see the plans or to borrow them,19 and from the comparatively infinitesimal number of cases in England and in this country in which any improper conduct on the

17 Shaw v. Andrews, 9 Cal. 73.

18 Orlandi et al v. Gray et

al.; Hayne v. Gray; 125 Cal. 372.

19 Poitras v. Deslauriers, 4 Rev. Leg. 375.

part of the architect has appeared, it is evident that the architectural profession may, with no small degree of satisfaction, view the record for loyalty to its ethics, to its duties and to its responsibilities, established by its individual members.

CHAPTER II

THE ARCHITECT AS AGENT OF THE OWNER

87. Importance of Agency Relationship.There is probably no phase of the whole subject of architecture which presents more questions for legal determination and none presenting situations of more difficulty and requiring more careful handling by the architect, not only in the interest of his client but in his own interest as well, than that dealing with the character, scope and effect of the agency of the architect.

In employment necessitating merely the preparation of plans and specifications, or the giving of expert advice, and in all matters of mere consultation or dealings with the client alone, the question of agency does not arise, but the moment that, as in the ordinary case, there is added the duty of superintendence, or dealings in behalf of the owner with the builder or third parties, the question of agency becomes at once of vital importance; and the directions to the contractor in regard to the work, the allowance of extras, the giving of certificates, the changing of the contract in any detail of construction, material, or otherwise, all are at once involved.

§ 8. Agency, Express and Implied.—The