Opinion of the Court-Sullivan, C. J.

"All masonry work below ground should be laid in cement mortar and all arches or heavily loaded piers as well. In many city laws the use of cement mortar is required to a certain proportion of the height of the wall."

And at page 113: "Lime mortar does not possess the 'setting' quality of cement, but gradually hardens by exposure to the air. Lime mortar does not harden under water or in very damp situations."

The specification for electric wiring is as follows:

"The contractor will wire the building for electric lights making provision for a drop light where marked D L on drawing No. 3, he will also make provisions in basement for 12 lights where directed by Supt. The wiring must all be according to the latest improved methods according to the city ordinance and the rules and regulations of the under writes subject to their inspection, all rooms must have flush switches placed where directed, all fuse boxes, cut-outs, etc., must be installed where architect directs, connection will be made to the building by the underground system and complete installation furnished by the contractor. Under this contract the contractor will not furnish any light fixtures."

That specification does not indicate where the wiring will be taken in or out of the building; the kind, quality or weight of wire to be used; the kind or length of insulated cords; whether the wires shall be suspended on cleats or knobs; whether rubber, porcelain, clay or glass insulation shall be furnished; whether the wiring shall be concealed or run along the walls or ceiling by cleats; the kind, character, location or number of flush switches, cut-outs, fuse-boxes, or any other apparatus. It does not provide for wireways so that concealed wiring may be permanently accessible, nor for any meters, nor determine whether the whole building shall be on one or more circuits, nor provide for distribution of the load and grouping of cut-outs if branch circuits are adopted. It does not even specify whether the building is to be wired for an alternating or direct current connection. This specification analyzed provides for nothing more than that the building shall be wired according to the city ordinance and

Opinion of the Court-Sullivan, C. J.

the rules of the National Electric Code which contains the regulations used by fire underwriters. Neither the ordinance nor the Electric Code, as we understand them, specifies just the class or kind of wire and other material that shall be used in wiring buildings, but simply formulates the general principles according to which electrical work must be done. The plaintiff while on the witness-stand admitted this specification did not conform to any recognized authority, but claimed that any deficiency therein was cured by reference to the ordinance and said Electric Code recognized by fire underwriters, and counsel for defendant undertook to show the defect in this particular specification on cross-examination of plaintiff but was not permitted to do so by the court. He undertook to show that said Electric Code had reference merely to general principles or general regulations and not specific. The following question was propounded to plaintiff :

"Q. The regulations in the National Electric Code, which is the fire underwriters' regulations that you speak of, are merely general regulations saying that certain kinds of materials shall be used in certain buildings?"

To which objection was made as not being proper crossexamination. The court sustained the objection and remarked: "I will not permit it to go further. You may have an exception." The witness had undertaken in his direct testimony to help out said specification and claimed that the reference to the "under writes," evidently meaning the fire underwriters, was sufficient to make it specific, and counsel on cross-examination undertook to show that said Code merely contained general regulations and nothing in regard to the particular material to be used in wiring, and the court refused to permit him to do so. This was error. Witness Loring, an expert architect, testified that there were several different methods of installing electric wiring and that the said Electric Code specifications did not indicate which method was designated. The following question was asked:

"Q. Any one of these several methods would conform to the National Electric Code of the Underwriters, would it not?''

Opinion of the Court-Sullivan, C. J.

Opposing counsel said, "I do not know what that is." The Court: "I don't either; I think you better get along with this case."

Witness: "There are three or four that I recall-three that I recall which would conform to the Underwriters' Code."

"Q. Do you know of any association or other thing designated by the name of 'Underwrites'?"

McDonald: "There is evidently a clerical mistake. We object to that. If they can't base their defense on something more definite than that, they better quit."

The Court: "You can argue this later to the jury. I will sustain the objection."

As the court refused to allow the witness to answer the question, we fail to understand the relevancy of the court's remark to the effect that counsel could argue that later to the jury.

"Q. Is any provision made by that specification for the character of tubing or knobs or insulation?”

Objected to as incompetent, irrelevant and not the best evidence. Sustained. Exception.

The court not only excluded from the jury all evidence essential to the intelligent comprehension of the sufficiency of that specification, but by his rulings and remarks and the remarks of plaintiff's counsel, defendant was held up to the jury as delaying the case, asking foolish questions and trifling with the court. There was clearly error in all of this. This case involved the question whether the plans and specifications referred to were specific and sufficient for the purpose for which they were intended, and the court absolutely refused to permit appellant to introduce evidence to show that said plans and specifications were defective. That was one of the main issues, as it was contended that the plans and specifications were not sufficient for the purposes for which they were intended.

The plumbing and heating specifications are indefinite and uncertain, and leave too much to the mutatory whims of the contractor or supervising architect.

Opinion of the Court-Sullivan, C. J.

The specifications are also defective in that they do not provide for any certificate of inspection by the architect nor whether any insurance should be carried pending the completion of the building. They make no provision for the modification of the plans as the work progresses, and they contain no stipulation in regard to changes, extras, nor to extra work.

In 1 Ency. of Architecture, top p. 70, the author says: "Each requirement should be so carefully written that there can be only one interpretation, leaving no doubt as to its true intent. If the specifier hopes to get better work through some hidden meaning in the specification, he is doomed to disappointment; for the more expensive interpretation will be used by the contractor in making up his bid; and later, when the work is required, the contractor may plead that, on account of the uncertainty of meaning he should not. be required to furnish any part without extra compensation."

Reference is also here made to pp. 24 and 25 of said authority, which refers to architects having knowledge of the statute law, and the ordinances of the city, and says:

"Moreover, it will be seen later that a person employing an architect has a right to rely on the architect's knowledge of building regulations; so that the latter will be liable to his employer if through his ignorance the laws are infringed and the employer suffers."

And at p. 37, it is said: "In addition to this knowledge of the fundamental laws of nature, of materials, etc., an architect represents himself as possessed of a knowledge of the statutes, ordinances, and laws relating to buildings and to the erection of buildings of the place where the structure is to be located."

So far as an architect is concerned, there is always an implied contract that the work shall be suitable and capable of being used for the purpose for which it is prepared. Apart from questions of public policy, this principle would prevent him from recovering upon plans and specifications

Opinion of the Court-Sullivan, C. J.

prepared in violation of law, unless he was directed to so prepare them by the owner.

In Straus v. Buchman, 96 App. Div. 270, 89 N. Y. Supp. 226, the court said:

"It was for the purpose of protecting himself against just such defects and improper workmanship that he employed the defendants as superintending architects, and, in the performance of their duties under the contract, they were bound to exercise reasonable care and diligence in supervising the work. . . . . The placing of these timbers, and the manner in which they were secured, was not only a serious defect, but a direct violation of the statute in force at that time relating to the construction of buildings in the city of New York, which provided that 'in no case shall either end of a beam or beams rest on stud partitions.' It was the duty of the defendants, under their contract with plaintiff, not only to see that the beams were properly placed, but especially to see that the placing of them conformed to the requirements of the statute. This they failed to do."

In Hubert v. Aitken, 15 Daly, 237, 2 N. Y. Supp. 711, 5 N. Y. Supp. 839, the court said:

"No one would contend that at this day an architect could shelter himself behind the plumber, and excuse his ignorance of the ordinary appliances for sanitary ventilation by saying that he was not an expert in the trade of plumbing. He is an expert in carpentry, in cements, in mortar, in the strength of materials, in the art of constructing the walls, the floors, the staircases, the roofs, and is in duty bound to possess reasonable skill and knowledge as to all these things.'

See, also, Kinney v. Manitowoc County, 135 Fed. 491, 68 C. C. A. 203.

Clearly, according to the authorities on architecture, engineering contracts and specifications, said plans and specifications were not sufficient for the purpose for which they were intended.

The court erred in refusing to give plaintiff's instructions Nos. 1 to 13, inclusive, or instructions embodying the same principles of law.

Idaho, Vol. 19-9