THE ARCHITECT IN HIS LEGAL

RELATIONS

CONTRACTS .

Legal considerations often enter into the architect's work, and dictate his course of action. An architect in active practice cannot acquire such a knowledge of the principles of law as will enable him to dispense with expert advice in unusual circumstances, or in matters of great importance. The trained power of legal reasoning which, with an accumulated knowledge of law, is part of the equipment of a good lawyer, and which, even in apparently simple situations, is constantly called into use, is not to be attained by a man whose chief energy is given to another profession. Nevertheless, it is important for an architect to have some knowledge of the nature of legal considerations and of the legal principles of commonest application.

In the following pages will be found brief general statements of the law upon certain matters with which an architect is much concerned, and suggestions as to the application of these principles to his business. It should be mentioned that the laws in different states differ widely in details; it is impossible here to go. into such details. What is given is intended to provide such an understanding of principles as will give the student a certain knowledge of the nature of his legal rights and duties, some conception of the kind of mistakes which are possible, and of precautions which may be taken, so as to constitute a practical safeguard in everyday business.

It is proposed to present first a general statement of legal principles affecting the relations into which an architect is brought in the practice of his profession.

LAW OF CONTRACTS

The building contract, commonly made between the owner and the builder, confers certain powers upon the architect. While

the architect is not a party to this contract, and so cannot enforce it, he is by reason of it drawn into the contractual relations of others. For this reason alone, the branch of the law dealing with contracts is an important one to him. Moreover, he may have occasion to supervise or assist in the making of contracts in behalf of the owner; while in the important matter of right to compensation, the architect is dependent upon the law relating thereto.

Express Contracts and Implied Contracts. When competent persons make a contract, their rights are fixed thereby. If, however, without any express contract, one person furnishes services or goods which another person accepts, and if there is no understanding that the transaction is a gift, the person furnishing the services or goods is not without a right to compensation. The law imposes upon the person receiving the benefit an obligation to make compensation to the person from whom he receives it. This obligation is sometimes said to arise under an implied contract, as if, in accepting the benefit, it is impliedly agreed to make recompense. This principle is of great importance and frequent application. It will be seen later that it is applied not only when there is no express contract, but also in some cases where an existing express contract for some reason cannot be enforced.

The principle above stated, that an express contract once made by competent parties fixes their rights, is fundamental. Suppose A sues B upon an implied contract for material furnished, claiming $100 as the value thereof. If the parties had an express contract for a smaller sum, A could not recover $100, even though that might be a reasonable price; or if there was an express contract which had not substantially fulfilled, A could not, in general, recover at all, unless indeed it can be shown that, in spite of A's failure to fulfill exactly the contract, B has accepted the material. In that case the facts might raise a new implied promise. But if B refused the material, no such promise could, of course, be implied. On the other hand, if A offered material in compliance with the contract, and B refused to receive it, A could hold B answerable for breach of the express contract although B received no benefit therefrom.

Quantum Meruit. The contract which is implied in law is always to pay the fair value of what has been received. The Latin words quantum meruit, meaning as much as it is worth, are therefore

used to describe an action based upon an implied contract. To recover in quantum meruit accordingly means to recover the reasonable value, to be determined in the course of the action, of whatever has been furnished. It has already been explained that where there exists a valid and enforceable contract, on which both parties have the right to insist, no recovery can be had in quantum meruit for labor and materials furnished under the contract. This does not mean that where a contract once existed concerning such work and labor, or goods or materials, or concerning a part of it, an action in quantum meruit will never lie. There are various circumstances under which this action will lie, in spite of such an express contract. It sometimes happens that a contract is so altered that it is no longer ascertainable and is therefore treated as not existing. In such a case an action on an implied contract can be maintained. If a partly performed contract is abandoned by the agreement of all the parties to it, an action in quantum meruit will lie for the work or materials already furnished only in case the contract is what is known as an entire contract as distinguished from a divisible or apportionable contract. An apportionable or divisible contract is one susceptible of division or apportionment because of having two or more parts not necessarily dependent upon each other and not intended to be so dependent; as, for instance, in the case of a contract for building several houses, where there is nothing in the contract itself or the circumstances to prevent singling out the part respecting a particular house, and treating it as distinct and complete of itself. Such a contract might be of such a nature that it would be obviously unfair to one party or the other thus to separate the parts, and to hold a party bound as to a portion without regard to the rest. A contract of this latter sort would be an entire contract, that is, a contract of which the terms, nature, and purposes indicate an intention that each of its material provisions shall be dependent on all the rest. If, then, the contract which is abandoned is a divisible contract, of which one or more complete divisions have been performed, the contract may be treated as governing those divisions and recovery may be had only under the contract. But if the contract be an entire contract, it would not be fair to hold the parties as bound in respect to a portion only, never contemplated as complete in itself. Their rights must therefore be settled

on the theory of implied contract, the party indebted being answerable in quantum meruit only.

When one party to a contract is ready and willing to perform, but is prevented from performing or from completing his performance by the act or fault of the other contracting party, the first party may recover on the contract, or he may elect to rescind the contract and recover in quantum meruit for the labor and materials employed. If the party prevented from performing elects to rescind the contract and sue in quantum meruit, the party at fault is required to pay whatever the real worth of the work and materials is proved to be, not, however, according to the general rule, giving compensation in excess of the contract price for the whole.

In an action in quantum meruit the architect's certificate is probably not necessary to recovery, although where the architect has pointed out defects in the work or material already employed, and the builder claims to have remedied them, it may be practically necessary for the builder to show the architect's certificate stating that the defects have been satisfactorily remedied.

Validity of Contract with Illegal Provisions. In general, a contract which violates statute law, or any principle of the common law or of public policy, cannot be enforced. This may be of importance to architects in connection with restrictive building laws. The mere fact that a contract may be, or has been, carried out in such a way as to involve forbidden acts, does not render it invalid; the rule is aimed at such contracts as necessarily involve the doing of something illegal. Similarly a contract which is intended to effect a civil wrong to a third person may under some circumstances be illegal. An illegal contract cannot be enforced, according to the general rule, even by one who performed his part of the bargain, although for services rendered under such a contract there might be some right of recovery by implied contract. This is one of the subjects of which it is impossible to give here more than the broadest principles; the point to be borne in mind is that in case of any contract involving legal wrongdoing, there is occasion for caution and for ascertaining legal rights under the peculiar circumstances of the case as they may arise.

Validity of Contract Provisions Opposed to Public Policy. As contracts which involve violation of statute or common law

cannot be enforced, so there are principles of public policy which no contract will be allowed to contravene. Thus clauses such as are common in building contracts, providing that any future disputes arising in the course of dealing between the parties shall be determined in some specified way by arbitration are not always effective to prevent the parties from resorting to law. The policy of the law will not permit courts of justice to be thus ousted from their jurisdiction.

But in spite of the lack of binding force in agreements intended to prevent a resort to the courts, there is a method in which a. resort to referees or arbitrators for certain purposes may be enforced. A clause of a contract making it a condition precedent to recovery in court, that the quality of materials, the value of services, the amount of damage and the time of paying it, or other matters not going to the root of the action itself, shall be settled in a certain way, is valid, and will prevent the maintenance of an action until all possible steps have been taken to comply with it. Thus the provision of many building contracts that certain matters such as those just named, shall be referred to the architect, is valid. The further stipulation that the architect's decision of such matters shall be finally binding, is also generally held effective, in the absence of bad faith on the part of the architect. When a contract is thus drawn, the agreement of the parties rests their legal rights directly upon the decision of the persons named. No obligation under the contract therefor arises until the arbitrators decide a question, and they having decided it, resort may be had to the courts in order to enforce their decision. The courts are therefore not ousted from their jurisdiction.

Parties to Contract. Individuals. In order to have a good contract, the parties must be legally competent. As an infant is favored by the law, a person on coming of age may affirm or repudiate contracts while made under the disability of infancy, although the other party to such a contract is bound. It is furthermore unsafe to enter into a contract with a lunatic or a drunken person. A married woman was formerly unable to contract; in some states married women may now make valid contracts about their own property, while in many states the disability is entirely removed.