an action to recover the money so advanced and expended and compensation for his services so rendered by him in contemplation of having the contract and the opportunity to perform it. The right of recovery hinged upon whether authority to conduct the negotiations with him was predicable as regards the officials with whom he has carried on negotiations with regard to the prospective work; viz., the defend ants' chief engineer and general counsel. The evidence (too voluminous to state here) was held to warrant an affirmative answer to this question, and the finding of the referee in favor of the plaintiff was accordingly upheld. See also Sharpe v. San Paulo R. Co. (1873) L. R. 8 Ch. (Eng.) 597, 29 L. T. N. S. 9, reviewed in § 48, note 4, infra. In an English case where an architect engaged by the defendants to draw a specification of a building employed plaintiff to make out the quantities, and the defendants ultimately refused to allow the building to be erected, a verdict finding that the architect was authorized to bind the defendants by the contract with the plaintiff was sustained, mainly on the grounds, that the evidence showed that there was a usage in the trade for architects or builders to have their quantities made out by surveyors; and that architect to waive, on behalf of his principal, the terms on which the owner had stipulated in writing that the payments for the work were to be made when the work described had been done to the architect's satisfaction. Tex. In Dunovant v. Taylor (1897) Civ. App. 40 S. W. 326, the grounds upon which it was held that the architect's principal was not liable for the price of sand supplied by Taylor, a subcontractor engaged to do certain painting, were thus stated: "Appellant had no knowledge of the contract with appellee. Dickey had no authority to contract with anyone but Macon [contractor in chief]. Appellee was not employed by Macon to do the work. Before Dickey made the contract with Taylor, appellant had already, at the instance of Dickey, made the contract with Macon to deliver the sand. We are of the opinion that Dickey had no authority whatever to make the contract with appellee, and that appellant, having paid Macon for the sand, is not liable to appellee. If appellant had, with knowledge of the facts, permitted apIn Rass v. Sebastian (1896) 160 Ill. 602, pellee to do the work, and had then paid 43 N. E. 708, affirming (1895) 57 Ill. App. another for it, he might be held liable; but 417, it was held that an allegation that the he has paid the man with whom he conpetitioner had entered into a written contracted, not knowing that appellee had any tract with the defendant for the construction connection with the same, and he cannot be of the building in question was not sup- made to pay the money a second time. ported by the proof, because the evidence Appellee did not claim to be a subcontractor showed that the contract introduced had under Macon, or endeavor to fix a lien on been signed by the defendant's architect the property." after the suit was brought, and his authority for doing so was not established. 3 This general rule was laid down, arguendo, in Hampton v. Glamorgan County Council [1917] A. C. (Eng.) 13, 86 L. J. K. B. N. S. 106, 15 L. G. R. 1, 115 L. T. N. S. 726, [1916] W. N. 374, 33 Times L. R. 58, 81 J. P. 41, and explicitly affirmed in Campbell v. Day (1878) 90 III. 363. In Leverone v. Arancio (1901) 179 Mass. 439, 61 N. E. 45, it was held that the provision of the contract that the contractor, under the direction and to the satisfaction of the architect, acting, for the purposes of this contract, as agent of the said owner, shall provide all the materials and perform all the work mentioned in the specifications and shown in the drawings, "did not go further than to make the architect the agent of the owner in the matter of deciding whether the work done fulfilled the requirements of the specifications and drawings." There being no other provision from which an enlargement of his authority beyond that which was thus shown could be inferred, it was held that the trial judge had erroneously instructed the jury, as a matter of law, that it. would be competent for the In Bouton v. McDonough County (1877) 84 Ill. 384, it was held that the action of architects appointed to superintend the construction of a courthouse, in making an arrangement under which the subcontractor was to continue the work after the contractor in chief had become bankrupt and abandoned it, and to receive his compensation directly from the county, was not binding upon the county, because the architects "had no authority to vary the terms of the For similar agreement in any respect." decisions with reference to similar facts, see Watts v. Metcalf (1902) 23 Ky. L. Rep. 2189, 66 S. W. 824; Schanen-Blair Co. Marble & G. Works v. Sisters of Charity (1914) 77 Wash. 256, 137 Pac. 468. 4 Campbell v. Day (1878) 90 Ill. 363. 5 Starkweather v. Goodman (1880) 48 Conn. 101, 40 Am. Rep. 102. the defendants themselves had an intimation that such was the practice. In Scotland the authority of an architect employed on the ordinary footing to engage a surveyor to measure the work was in one case affirmed without any qualification. Lord Gifford laid down the broad doctrine that "the architect is the general agent of his employer for all purposes necessary for carrying out the work."" But more recently it has been declared that an architect is not invested with an implied power to make a contract for services of this description until the plans have been approved, and he has been authorized to go on with the building operations.8 c. Person superintending work for contractor. In one case it was held that a person sent by a nonresident contractor to superintend the construction of a railroad tunnel in a city had implied authority to employ a broker to find a purchaser for the earth to be excavated in the course of the work.9 In another case it was held that a person acting as the representative of 6 Moon v. Witney Union (1837) 3 Bing. N. C. 814, 132 Eng. Reprint, 624, 5 Scott, I, 3 Hodges, 206, 6 L. J. C. P. N. S. 305. There the defendant's attorney had given out that the successful competitor should defray the expenses of making out the quantities. The plaintiff's case was that, if there should be a successful competitor for the building, he was to pay for making out the quantities; but if there should be no such competitor, the defendants. The defendants contended that if there should be no successful competitor, no one was to pay the plaintiff, and that his employment was a speculation which he chose to enter into on those terms. 7 Black v. Cornelius (1879) 6 Sc. Sess. Cas. 4th Series, 581, 16 Scot. L. R. 475. 8 Knox v. Garden Suburb Co. [1912-13] Sc. Sess. Cas. 872. 9 Thompson v. Mills (1907) 45 Tex. Civ. App. 642, 101 S. W. 560. In that case Skene, the superintendent appointed to represent at Houston the defendant Thompson, who lived in St. Louis, agreed to pay Mills whatever amount he could obtain for the earth in excess of a sum specified. After Mills had sold the earth to one Settegast, who wanted it to fill in some city blocks, Skene was notified of the contract, and expressed his approval of the proposed arrangement for the disposition of the earth. A few days afterwards Skene, acting as Thompson's agent, signed with Fitzgerald & Ray, subcontractors for the excavation of the tunnel, an agreement which provided that, as part of the consideration, the sub contractors for the construction of a section of a railroad track, and superintending the work for them, was invested with apparent authority to bind them by a promise to pay the board bills of the laborers employed by the subcontractors. The consideration relied upon was, that he was empowered to compel the subcontractors to keep sufficient men on the work to fulfil their contracts with the defendants, and that, for the purposes of the case, it must be assumed that, in order to do this effectually, it was necessary to obligate them to pay these board bills.10 § 48. Same description of agent. Authority with respect to extra work and alterations. a. Civil engineer in service of railway company. The accepted doctrine is that a civil engineer appointed to superintend construction work on a railroad by an independent contractor is not, by virtue of his office alone, invested with authority to make a subsidiary agreement which provides for the performance of work not covered by the main contract, or contractors were to have the privilege of selling the earth for their own benefit. They immediately closed the contract with Settegast. Mills thereupon complained by letter to Thompson, but the latter disclaimed the authority of Skene to make such a contract, and instructed Skene to send the contract with Fitzgerald & Ray to St. Louis for his signature. The court said: "To our minds the facts plainly show that under Skene's general authority to employ hands to have the work performed he had the authority either to dispose of the earth or employ another to dispose of it for him. The earth in question was unlike a piece of ordinary property owned and held by defendant, and which he had employed a broker to sell. It is apparent that the earth, as a source of profit, was of little or no moment, and, except for the trouble of its disposition, was a mere incident to the main task of building the tunnel. If it be true that Thompson had authorized Skene to go to Houston and have the tunnel built, and this is clearly made to appear, then it seems to us Skene's employment of Mills was as clearly within that broad power as the contract with Fitzgerald & Ray." 10 Cannon v. Henry (1890) 78 Wis. 167, 23 Am. St. Rep. 399, 47 N. W. 186. 1 One of the grounds assigned for the decision in Homersham v. Wolverhampton Waterworks Co. (1851) 6 Exch. 137, 155 Eng. Reprint, 486, 6 Eng. Ry. & C. Cas. 790 (see § 21, note 3, supra), was that a waterworks company was not bound by the order operates so as to modify that contract in some other respect.2 Accordingly, where the enforceability of a claim depends upon the question whether such an agreement is binding upon the railroad company, the plaintiff cannot succeed unless he produces affirmative of its engineer for the performance of the extra work on which the plaintiff's claim was founded. This case was one of those relied upon in the Woodruff Case (see § 49, note 2, infra); but it is manifestly an imperfect precedent, because it did not involve the effect of a specific restrictive stipulation of the kind that was there discussed. a 2 In Burke v. Kansas City (1889) 34 Mo. App. 570, where it was held that a city engineer could not change the provisions of sewer contract regarding the depth at which the pipe should be placed, a stipulation, "according to such directions as the city engineer may from time to time give in superintending the construction of the works," was construed as being applicable to "such directions that he may give looking to a completion of the work according to the plans and specifications, and not to mean that the engineer may give directions for an improvement in manner different from that provided in the plans and specifications." It was made "the duty of the engineer, under the contract, to see that the contract is complied with, not violated." See also Dillon v. Syracuse (1890) 5 Silv. Sup. Ct. 575, 9 N. Y. Supp. 98, where a claim for materials furnished was rejected on the ground that a city engineer was not empowered to vary the contract for the repair of a bridge. evidence that it was within the scope of On the other hand, a resident engineer 4 In Sharpe v. San Paulo R. Co. (1873) L. R. 8 Ch. (Eng.) 597, Lord Romilly, M. R., whose decision was affirmed by the court of appeal, dismissed a bill praying for accounts and inquiries as to the indebtedness of the defendant company in respect of certain extra work performed by a contractor who had undertaken, by a contract under seal, to build a railway for a specified sum, and declared it to be quite clear that the engineer had no power to vary the contract; he had power to give directions to do certain things upon the line within the limits of the contract, and if the contractors thought that these things were not within the contract, they were not bound to do 3 In La Fayette R. Co. v. Tucker (1899) them. The bill alleged that the contractors 124 Ala. 514, 27 So. 447, the plaintiffs' evi- had executed certain other works on the dence tended to show that, in addition to faith of the promises and agreements of the work which they undertook for the Mr. Brunlees (chief engineer) that the conoriginal contractors, they raised certain por- tractors should be paid for those works by tions of the roadbed of the defendant's line the company. Lord Romilly remarked that and lowered others, at the instance of its these were merely the inferences and opinengineer, Cowan, and under his promise that ions of the contractors, on which the court it would pay them for it. Discussing the could not act, and that the company cerevidence, the court said: "Both Cowan and tainly never led the contractors to take the defendant's president testify that Cowan any such view. He further said: "As had no authority to make contracts for de- to the extra works, the mere allegation fendant. It is not disputed, however, that that the contractors did these things upon Cowan was the defendant's civil engineer, certain vague statements of the engineer having active and personal superintendence Brunlees, and the allegation of their own of the road's construction. He testified that feelings and opinions, and the reasons why 'he had the authority to change the grade of they did these things, would not ground an the railroad and have the work done accord- equity by which they would be entitled to ing to the changes.' Such changes, if made, come for relief to this court. . . Unless must have involved work extra of the origi- the plaintiffs could show that the company nal specifications. He assumed to represent had, by some means or other, in writingthe defendant when, according to his own not necessarily under seal-clearly and detestimony, he told one of the plaintiffs, re- cisively bound themselves, the plaintiff's ferring to the grading in question, 'to go on could not vary the contract and make a and do the work, and whether it was to the new and substituted contract by reason of grade or not, that the company would pay any conversations said to have been held for it.' Whether by this he meant that the with the engineer, which it was obvious. company would pay plaintiffs or the origi- upon the bill itself, he had repudiated and nal contractors may not be clear, but, being would not assent to." The extent of the addressed to the plaintiffs, it might reason-engineer's authority was not discussed by ably be inferred that the promise inured to the higher court. has been ordered by his principal shall | architect or other agent exercising simibe carried out, and to make the neces-lar functions "has no power to change, sary contracts for its performance.5 b. Architect or other agent supervising 6 alter or modify that contract, 997 or to the performance of work in excess of enter into a subsidiary agreement for that covered by the contract.8 It has been held, however, that this doctrine does not apply where the evidence shows that "the architect was also which proceeded on the assumption that an architect was entitled to agree that certain departures from the specifications should be set off against extra work); McIntosh v. Hastings (1892) 156 Mass. 344, 31 N. E. 288 (where the actual point decided was, that the principal was not bound to pay way not contemplated by the contract). the extra cost of furnishing mortar in a the construction of a building. It is well settled that, except in so far as special circumstances may operate so as to enlarge his ordinary authority, an 5 In Henderson Bridge Co. v. McGrath, (1889) 134 U. S. 260, 33 L. ed. 934, 10 Sup. Ct. Rep. 730, the original plan, which provided for several stretches of trestling where the railroad leading to the bridge to be constructed under the main contract crossed river bottoms, was changed by the company, so as to omit the trestles and substitute a continuous embankment with culverts. This alteration necessitated a different system of surface drainage, and it was determined 376, where the actual point determined was In Boyd v. Newark (1869) 19 N. J. Eq. that the borrow pits should form a drainage that the street inspector and committee of ditch on one side of the embankment for the defendant city "had no power to disabout two thirds of its length. One Hurl-pense with the contract, or anything that bert, who had supervision of the work in the field, was directed to have the modifications carried out. The plaintiffs' claim was founded in part on the theory that the ditch required under the new plans was extra work, not included in their contract, and that Hurlbert promised that they would be paid for it at the same price that they had bid for excavation, and that it would be estimated from the top of the ground downwards. The contention that this promise bound the defendant was sustained. With regard to another contested item, which had reference to the value of certain extra pile work, the court said that, as the action was on a quantum meruit, the question whether Hurlbert had authority to make a contract as to the payment of the piles was immaterial. 6 Such a situation may conceivably arise with reference to the provision commonly inserted, that if any dispute shall arise respecting the true construction of or meaning of the drawings or specifications, the same shall be decided by the architect, and his decision shall be final and conclusive. See Fitzgerald v. Moran (1894) 141 N. Y. 419, 36 N. E. 508. There, however, the actual ground upon which it was held that a plasterer could not enforce a mechanics' lien was that he had departed from the specifications as to the composition of the plaster, and that a letter in which the architect had complained of his noncompliance with the contract, and directed him to follow the instructions of the superintendent of the manufacturer of the cement used in the mixture, could not be construed an authority to follow those instructions in as respect of a matter fixed by the specifications. 7 Mallard, S. & Co. v. Moody (1898) 105 Ga. 400, 31 S. E. 45 (said, with reference to a certificate, that the contract had been fully complied with); Adlard v. Muldoon (1867) 45 Ill. 193 (instruction disapproved L.R.A.1918F. it required in terms," the following remarks were made by Zabriskie, Ch., arguendo: "An architect to whom, by the contract, everything was to be referred, could not hold that a brick house was a compliance with a contract to build one of marble; or that steps of blue flag were brown stone steps; or that a wall 12 inches thick complied with a contract to make one of 16 inches. He could determine whether the marble front, the brown stone steps, or the manner, but could dispense with no sub16-inch wall were put up in a workmanlike stantial matter expressly required by the contract. Such approval would not entitle the contractor to recover at law." & W. 60, 152 Eng. Reprint, 27, 1 Dowl. N. S. See also Cooper v. Langdon (1841) 9 Mees. action of assumpsit on 392, 11 L. J. Exch. N. S. 222, where, in an build a house according to certain drawings an agreement to and to the satisfaction of the plaintiff, a plea averring in substance that the defendant had deviated from the drawing by the direction of plaintiff's architect was held bad, no authority on the part of the architect to bind the plaintiff by any deviation from the drawings being alleged. Conn. 101, 40 Am. Rep. 152 (changes in 8 Starkweather v. Goodman (1880) 48 plans increased cost of house); Campbell v. Day (1878) 90 Ill. 363 (subcontractor replaced defective piers); Watts v. Metcalf (1902) 23 Ky. L. Rep. 2189, 66 S. W. 824 (architect not authorized to bind owner by agreement to pay subcontractor if he went on and finished certain work, after the contractor had thrown it up); Benton County sioner appointed in behalf of a county to v. Patrick (1876) 54 Miss. 240 (commisnot bind the county by contract for extra supervise the building of a courthouse could work); Day v. Pickens County (1898) 53 S. C. 46, 30 S. E. 681; Schauen-Blair Co. Marble & G. Works v. Sisters of Charity (1914) 77 Wash. 256, 137 Pac. 468 (sub the agent of the owner, and represented In Merrill v. Worthington (1908) 155 Ala. 281, 46 So. 477, the question whether recovery could be had for extra grading on a street was held to be for the jury, where the evidence tended to show that the employee in pursuance of whose directions it was performed had been stated by the defendant, when speaking to the claimant, to be his "superintendent," whom he had placed in charge of the work, and whose orders would be "the same as if they came from himself." It was also laid down that, after the introduction of such evidence, testimony as to what the superintendent had said to the claimant was competent. Reference may also be made to Rex v. Peto (1826) 1 Younge & J. 37, 148 Eng. Reprint, 577, where, in an action brought by the Crown upon the bond given by a contractor for the performance of a building contract, which reserved to the obligee the power of directing by its surveyor "additions or omissions," it was held that the obligor must, on a plea of performance, quoad those parts in which no orders were given by the surveyor to vary and deviate from the original plan, show an authority in the surveyor to give such directions, or aver that the deviation or variation was an omission or addition. Alexander, C. B., said: "Is it possible that this clause was intended to give to the surveyor, a person who ought to be in general but an overlooker of the owner, to see that the work is accurately performed, a power to vary the whole scheme of the building? or if it were so intended, that it could have been expressed in such language? In sound construction, it should be limited to that to which the condition had confined it, namely, to such extra works as may be done, or something which is to be omitted; but it cannot refer to the substitution of one thing for another, more builder, and not between the employer and the builder, as in the ordinary case, where no such contract exists. Under such circumstances, therefore, the builder cannot be bound by an undertaking that he would abide by the decision of the architect on all such questions, inasmuch as that undertaking had been entered into by the builder at a time when he was ignorant of the contract between the architect and the employer, and when he supposed that the decision of the architect would be impartial, unbiased, and not one in which he had himself a strong pecuniary interest. ''10 especially anything so important as the making the foundation on which the whole validity and security of the building depends.' 9 Thomas v. Stewart (1892) 132 N. Y. 580, 30 N. E. 577. There the agreed case was that one R. was employed by the defendant as his architect and servant, to superintend the work of erecting his house, and that the defendant told one of the contractors that everything was left with the architect. The fact that the change was made "without the knowledge or consent of the owner," as found by the court, was held, when the context was considered, to import, "without his personal knowledge or consent." This decision was treated by the appellate division as a controlling precedent in a case where the changes were made by the direction, or with the consent, of an architect who, as the defendant admitted, was employed by him "to supervise the construction of the building in all of its details." Schnaier v. Nathan (1900) 49 App. Div. 298, 63 N. Y. Supp. 38. In Loeb Foundry Co. v. Stout (1895) 61 Ill. App. 166, the right of the plaintiff to recover for work and labor in replacing a part of a roof was predicated on the ground that his employer had "principal charge of the work of erecting the building." See also Gibson County v. Motherwell Iron & Steel Co. (1889) 123 Ind. 366, 24 N. E. 115, where, however, the actual ratio decidendi, though not specified in the opinion as distinctly as it might have been, was apparently the fact of the final acceptance of the building in question by the principals, rather than the extent of the architect's authority as their representative. Compare also Powell v. King Lumber Co. (1915) 168 N. C. 632, 84 S. E. 1032, where it was held that an agent appointed by a nonresident contractor to oversee the work of erecting a building was not a mere foreman, but the local "superintendent" of his principal, and, as such, authorized to bind the contractor to pay for materials furnished to a subcontractor. 10 Lord Romilly in Kimberley v. Dick (1869) L. R. 13 Eq. (Eng.) 20. |