166 Mass. 279 | Mass. | 1896
This is an action against an architect for alleged misstatements of the amount of work done under a building contract by the terms of which, as usual, partial payments were to be made from time to time upon the architect’s certificate. The jury found a verdict for the defendant on the first count, so that only the second count needs to be considered. On that they .found for the plaintiff. The case is here on a report of the defendant’s appeal and exceptions.
The appeal is from the overruling of the defendant’s demurrer. The decision was right. The second count charges that the defendant falsely, negligently, and acting in collusion with the builder, gave a certificate under the contract, and represented that the value of the labor and materials which had-- gone into the construction, of the building would amount to the sum certified, etc. This, we think, in spite of the word “ negligently,” is raised by the allegation of collusion to a somewhat timid charge of fraud; Batterbury v. Vyse, 2 H. & C. 42, 46;
The claim for damages was put to the jury as standing on an alleged negligent or wilfully false statement by the defendant in conversation with the plaintiff, distinct from the defendant’s act of certifying the sum paid to be due. No question of variance is before us, but the question raised is whether the defendant was liable as a matter of substantive law if he made such a negligent statement to the plaintiff as to the value of the work done, and if the plaintiff paid on the strength of it. Probably under the English law the defendant would not be liable for negligence in making his certificate upon a matter which the plaintiff and the builder had agreed by their contract to leave to him. Stevenson v. Watson, 4 C. P. D. 148. Tharsis Sulphur & Copper Co. v. Loftus, L. R. 8 C. P. 1. Pappa v. Rose, L. R. 7 C. P. 525; S. C. L. R. 7 C. P. 32. Compare Irving v. Morrison, 27 U. C. C. P. 242; Thomas v. Fleury, 26 N. Y. 26, 33, 34. But a different principle may come in with regard to oral advice or statements to his employer. In making them the architect is or may be found to be rendering a purely partisan service under his contract, and if he is, then he is bound to show reasonable care and reasonable professional judgment. As a consequence of his contract of employment the law throws the risk of his statements upon him at an earlier point than it would do otherwise. But for the contract he would not be liable for statements unless fraudulent, or for advice unless dishonest. Under the contract negligently erroneous statements and imprudent advice become torts, on the same principle that under a warranty an erroneous statement was a deceit by the old common law, without even negligence. See May v. Western Union Telegraph Co. 112 Mass. 90 ; Tasker v. Stanley, 153 Mass. 148, 150; Nash v. Minnesota Title Ins. & Trust Co. 163 Mass. 574, 587; Petersen v. Rawson, 34 N. Y. 370; Shipman v. State, 43 Wis. 381.
Judgment on the verdict.