Fontano v. Robbins
22 App. D.C. 253
| D.C. Cir. | 1903
Mr. Chief Justice Ai.vnv

delivered the opinion of the Court:

The plaintiff has assigned three errors, for which he asks the reversal of the judgment:

1. That it was error to take the case from the jury, in view of all the evidence before them.

2. That it was error to hold as matter of law that the architect *264had the power and authority under the contract sued on, or by virtue of his employment as such, with the usual powers as architect, to change and materially to depart from the express provisions of the contract without the consent of and against the protest of the plaintiff, in directing and requiring the plaintiff to proceed with the setting of the marble work in the chapel, before the enclosing walls were up and the roof on the chapel, as required by the contract.

3. That the court erred in admitting parol evidence to vary, add to, or modify the terms and provisions of the written contract sued on.

1. With respect to the first assignment of error, we do not perceive that the case is materially changed from what it was when here on the former appeal, so far as the right of the plaintiff to have the case passed upon by the jury is concerned. On the first trial the case was taken from the jury, and that was held by this court to have been error, and the judgment was reversed and the cause remanded for retrial. It is true, the defendant’s evidence contained in the present record was not then before us; but there is nothing in the defendant’s evidence, as now disclosed, that rendered it proper to take the case from the jury on the last trial, any more than on the former trial. On both trials, there was evidence that should have been submitted to the jury.

The learned justice below seems to have been of opinion that the architect had paramount authority over the contract and the work to be done under it, and that he could change and vary the contract and the plans and specifications, of the work as he thought proper; and this appears to have been the opinion of the architect also, as to the extent of his powers. The justice below seems to have thought that because the plaintiff did not proceed with the execution of the work as directed by the architect, before the erection of the exterior walls and putting on the roof, as required by the contract, he can have no right to recover for any delays that may have occurred, in violation of the terms of the contract, no matter how damaging such delays may have been to the plaintiff. That such was the view of the justice. below seems clear from the opinion expressed by him, *265which has been furnished ns in the brief of the appellee. It is there said: “There is no fact about it so far as this issue is concerned, for the order is shown to be a lawful order, such as an architect could make. That I held upon the argument yesterday, unless it could be shown by some proper evidence, exterior, that it was an unreasonable order and ought not to have been made, or that it was so unreasonable as that it would be presumed not to be in contemplation of the parties at the time they drew up the contract and specifications. But that does not seem, from the evidence, to be the fact, and when we come to that conclusion we have disposed of every question of fact there is in the case. The fact of the plaintiff having been idle for a certain length of time, of his being put to expense by having an agent here, and a man here who was brought over to assist in the work, is shown, under such circumstances, to be the result of his own conduct. lie refused to go on under the direction of the architect and unless he could go on in the way originally provided in the contract, which would be with the walls up and the roof on. There could be, in his estimation, no change made, and unless that condition of things was brought about he would not go on with his work. In doing .that I think he assumed the responsibility, and it can not be referred to any fault on the part, of the defendant in this case. It is the result of his refusal to do anything until he could do it in exactly the way the original contract provided, ignoring the order of the architect. There is where the whole trouble seems to have arisen.”

Upon such a construction of the contract it would afford the plaintiff, the contractor, little or no protection, and all power would reside in the architect to change and modify the terms of the contract at his will and pleasure. If he can dispense with one provision of the contract, made manifestly for the protection of the contractor, he could dispense with any other material provision, or as many others as he might think proper, and the rights secured by contract would thus become subordinate to the will and pleasure of the architect. This was clearly never contemplated by the contracting parties. Indeed, the very terms of the contract forbid it.

*266It is not pretended that there was any supplemental contract made by the parties; nor is it shown that there were any such alterations made in the work described in the drawings and specifications, by the written order of the architect, as would seem to be contemplated by the terms of article 3 of the contract. Such alterations could only be made in respect to some minor details in the plan of the work as shown and described by the drawings and specifications, but not as to the manner and conditions under which the work was to be performed. The architect himself has given us his idea of the source and extent of his authority under the contract. He says: “I had the usual authority of the architect. I was supposed to have charge of the work. I am supposed to direct the contractors when to begin and how to do their work, the order in which they shall do it, and when to start and when to stop.” A very large power, certainly; and he makes no exception in respect to the terms of the contract, nor of the special nature and character of the work to be done. JBut whatever this architect may think of the nature and extent of his authority, we suppose it to be competent to the parties contracting in respect to the work to be done, and the manner and conditions under which it shall be executed, to determine for themselves the conditions under which the work may or can be done, and thus exclude the power of the architect, and to place the conditions under which the work shall be done beyond his control. That, we think, was done by the contract sued on in this case.

The general or usual powers of an architect are not, by any means, of an unlimited character. Building contracts generally make the architect the agent of the owner in the matter of deciding whether the wmrk done is according to the requirements of the drawings and specifications. But, apart from an agreement to that effect, an architect is not the general agent of the owner, and has no power to change plans of the work, and especially not to the detriment of the contractor. He cannot change the terms of the contract, and either omit or insert provisions that the parties have not agreed to, unless expressly authorized by the parties. The terms of the contract, that the contractor, under the *267direction and to the satisfaction of the architects, will provide all the materials and perform all the work mentioned in the specifications and drawings, made by the architects, and made parts of the contract, only mean such supervision and direction, looking to the execution and completion of the work according to plans and specifications, as may be proper to be given to effect that end. Such provision makes it the duty of the architect to see that the contract is complied with, not violated. The authorities in support of this proposition are clear and numerous. Leverone v. Arancio, 179 Mass. 439, 61 N. E. 46; Adlard v. Muldoon, 45 Ill. 194; Burke v. Kansas, 34 Mo. App. 570; McIntosh v. Hastings, 156 Mass. 344, 31 N. E. 288; Stewart v. Cambridge, 125 Mass. 102; Glacius v. Black, 50 N. Y. 145, 10 Am. Rep. 449. See cases collected in 2 Am. & Eng. Enc. Law, 2d ed. p. 820.

It follows from what we have said that the judgment appealed from must be reversed, and the cause be remanded that another trial be had; and it is so ordered.

Judgment reversed and cause remanded.