“ his decision upon the ground that the plaintiff had fully per“ formed his duty, and was entitled to his compensation. The “ judgment of the General Term should be reversed, and “ final judgment for the plaintiff entered.”
DISSENTING OPINION.
Judge Leonard dissented from the opinion of the court, and said: — “ The plaintiff was employed by the defendant to draw “ the plans and superintend for him the construction of a “ dwelling-house in the city of New York. . . The plaintiff “ drew the plans and specifications, and the defendant contracted “ with the mechanics to perform the work, under the supervision “ of the plaintiff, and to be paid for only on his certificate of “ approval. It was the duty of the masons to lay out and exe“ cute the work according to the plans and specifications drawn “ by the plaintiff, and it was his duty to see to it that the “ masons performed the work properly, and in accordance “ therewith.” “ It is also insisted that the error occurred by “ the fault of the masons in laying out the work improperly at “ the beginning; that it was no part of the plaintiff’s duty to “ lay out the work, and that he is not to be held to that degree “• of diligence which would make him an insurer of the perfec“ tion of the work of the masons.” “ The plaintiff was em“ ployed for the purpose of detecting and preventing just such “ errors and imperfections as have actually occurred. His ser“ vices were of little use if he could not, with reasonable and “ ordinary diligence, discover a defect of such importance in “ the symmetry and regularity of the edifice as that the front “ windows were higher from the beams of the first floor, and “ nearer to the beams above, than at the rear windows, as soon “ as the beams of the second floor were laid, and long before “ the front wall was completed.”
The dissenting opinion, it will be observed, is based upon the judge’s own ideal, or, as the Illinois court would call it, caprice, in opposition to the testimony of the expert witnesses. They proved, to the satisfaction of the referee and the majority of the court, that an architect might show reasonable care and skill without discovering at once the defects referred to; the dissenting judge thought he could not, and based his dissenting opinion on his own theory, fortifying it by an interpretation of his own of the contract between the plaintiff and defendant. This contract provided that the architect should draw plans, etc., for the house, and “ superintend its progress.” The dissenting judge said that under the agreements “ it was the duty of the masons to lay out and execute their work according to the plans and specifications drawn by the plaintiff, and it was his duty to see to it that the masons performed their work properly, and in accordance therewith.” Even under this forced interpretation of the contract between the architect and owner, it is not evident why the architect should have to pay for the masons’ violations of their contract, in addition to discovering them ; or why the owner, after his attention had been called to the masons’ blunder, while he had in his hands the means of making them remedy it, or pay him suitable compensation, should be entitled to condone their error, and make them payment in full, and then bring up the same error as a means for withholding money due the architect; but the whole notion that the architect guarantees the compliance of the contractors with their agreements, which still lingers in the mind of the public, and of some inferior courts, appears to be now rejected, as it was in this earlier case, by the weight of the highest judicial authority.
The architect of the Northern Hospital, a State building in Wisconsin, was discharged by the Commissioners before the building was completed, and brought suit1 for the balance of pay due him. The case was brought to the Supreme Court, the question before the court being upon the admission of seven amendments to the Commissioners’ answer to the claim. Among other things, the amendments alleged : —
1. That the building constructed on the plaintiff’s plan was not as represented by the plaintiff, and did not answer the purpose for which it was constructed.
2. That by the plaintiff’s contract he agreed to furnish to the Board of Building Commissioners correct and accurate estimates of the materials put into the building by the contractors ; that the plaintiff’s specification required a certain number of feet of iron coil to be placed in the north wing of the building; that the plaintiff negligently certified to the Building Commissioners that the required quantity of coil had been put
in, and that the Commissioners, relying on his certificate, paid for it; that in fact a less quantity of coil had been put in; that it was the plaintiff’s duty under his contract to know the quantity actually put in; that the Commissioners did not and could not then know the fact; and that it came to their knowledge after the plaintiff’s discharge.
3. That the plaintiff put, or procured to be put, into the building a defective heating apparatus, not such as his contract bound him to see put in.
4. That “by the contract and specifications thereto attached” the plaintiff was to procure to be put into the building certain water-closets ventilating downward, but procured to be put in water-closets ventilating upwards ; and agreed to procure to be put in sufficient plumbing, but procured to be put in insufficient plumbing; and agreed to procure to be put on the building a suitable roof, but procured to be put on an insufficient roof.
The court said, in substance, as to the first and second amendments here mentioned, that “ the plaintiff made his con“ tract as an architect; and should therefore be held to at least “ reasonable skill in his calling, both in planning the building “ and in superintending its construction. It may perhaps be “ doubted if he should be held responsible for a perfect plan or “ for perfect superintendence in every detail of such a build“ ing, if such things be practicable. It may perhaps be doubted “ if he should be held responsible in damages for all incidental “ failures in detail of foresight or of oversight, consistent with “ proper architectural skill and reasonable diligence. He did “ not guarantee perfection of the plan or perfection of the
ARCHITECT DOES NOT GUARANTEE PERFECTION OF PLAN
OR PERFECTION OF BUILDING.
“ building. Under his contract he became an inferior servant “ of the State, to perform duties under control of superior ser“ vants of the State, who were, indeed, pro hac vice, the State “ itself. He prepared plans for the approval of the Commis“ sioners. They might have rejected the plans submitted, and “ called for others. They were made the judges of the plans, “ and of their sufficiency.
RELATION OF COMMISSIONERS AND ARCHITECT.
“ The Commissioners, not the architect, had to determine “ the plan. When the Commissioners accepted the plaintiff’s “ plan, they ratified it. His superintendence was also subject “ to their oversight and control. They were made judges of “ the competency of the superintendent. They were made “ judges of the sufficiency of his superintendence, and could “ have dismissed him at pleasure. They must therefore be “ held to have been satisfied with his superintendence until his “ dismissal. Indeed, they seem to have ratified his superinten“ dence, by accepting the building which he had superintended, “ without apparent objection. Doubtless there might be defects “ in the plans or the execution of them, patent to an expert, “ latent to an inexpert. For such the plaintiff, not the Com“ missioners, might be liable. But so far as the plans were “ equally intelligible to the Commissioners and the plaintiff, “ and so far as these pleadings disclose, the Commissioners as“ stimed responsibility for the plans when they adopted them. “ And so far as defects of construction in the building were “ equally open to detection by the Commissioners and the “ plaintiff, on the completion of the building, and so far as “ these pleadings disclose, the Commissioners assumed responsi bility for them when they accepted the building. It is “ thought proper to say so much, because this cause bears some “ appearance of having grown out of controversy in relation to “ their respective duties between the Commissioners and their “ superintendent. But what has been said is not to be un derstood as an intimation that failure of the Commis“ sioners in their duty would under any or all circumstances “ excuse the plaintiff’s want of adequate skill or reasonable “ diligence in the performance of his duty. He may, notwith“ standing what the Commissioners may have done or left un“ done, be liable to the State for damages resulting from unskil“ fulness or negligence. But there is certainly nothing here “ pleaded on which such liability of the plaintiff can be sus tained.”
ARCHITECT NOT TO BE CONFOUNDED WITH BUILDER.
In regard to the amendments here numbered 3 and 4, the court said, “ All this appears to confound the plaintiff’s con
tract to furnish plans for the building, and superintend its1 Shipman vs. State, 43 Wis. 381.
DISSENTING OPINION.
Judge Leonard dissented from the opinion of the court, and said: — “ The plaintiff was employed by the defendant to draw “ the plans and superintend for him the construction of a “ dwelling-house in the city of New York. . . The plaintiff “ drew the plans and specifications, and the defendant contracted “ with the mechanics to perform the work, under the supervision “ of the plaintiff, and to be paid for only on his certificate of “ approval. It was the duty of the masons to lay out and exe“ cute the work according to the plans and specifications drawn “ by the plaintiff, and it was his duty to see to it that the “ masons performed the work properly, and in accordance “ therewith.” “ It is also insisted that the error occurred by “ the fault of the masons in laying out the work improperly at “ the beginning; that it was no part of the plaintiff’s duty to “ lay out the work, and that he is not to be held to that degree “• of diligence which would make him an insurer of the perfec“ tion of the work of the masons.” “ The plaintiff was em“ ployed for the purpose of detecting and preventing just such “ errors and imperfections as have actually occurred. His ser“ vices were of little use if he could not, with reasonable and “ ordinary diligence, discover a defect of such importance in “ the symmetry and regularity of the edifice as that the front “ windows were higher from the beams of the first floor, and “ nearer to the beams above, than at the rear windows, as soon “ as the beams of the second floor were laid, and long before “ the front wall was completed.”
The dissenting opinion, it will be observed, is based upon the judge’s own ideal, or, as the Illinois court would call it, caprice, in opposition to the testimony of the expert witnesses. They proved, to the satisfaction of the referee and the majority of the court, that an architect might show reasonable care and skill without discovering at once the defects referred to; the dissenting judge thought he could not, and based his dissenting opinion on his own theory, fortifying it by an interpretation of his own of the contract between the plaintiff and defendant. This contract provided that the architect should draw plans, etc., for the house, and “ superintend its progress.” The dissenting judge said that under the agreements “ it was the duty of the masons to lay out and execute their work according to the plans and specifications drawn by the plaintiff, and it was his duty to see to it that the masons performed their work properly, and in accordance therewith.” Even under this forced interpretation of the contract between the architect and owner, it is not evident why the architect should have to pay for the masons’ violations of their contract, in addition to discovering them ; or why the owner, after his attention had been called to the masons’ blunder, while he had in his hands the means of making them remedy it, or pay him suitable compensation, should be entitled to condone their error, and make them payment in full, and then bring up the same error as a means for withholding money due the architect; but the whole notion that the architect guarantees the compliance of the contractors with their agreements, which still lingers in the mind of the public, and of some inferior courts, appears to be now rejected, as it was in this earlier case, by the weight of the highest judicial authority.
The architect of the Northern Hospital, a State building in Wisconsin, was discharged by the Commissioners before the building was completed, and brought suit1 for the balance of pay due him. The case was brought to the Supreme Court, the question before the court being upon the admission of seven amendments to the Commissioners’ answer to the claim. Among other things, the amendments alleged : —
1. That the building constructed on the plaintiff’s plan was not as represented by the plaintiff, and did not answer the purpose for which it was constructed.
2. That by the plaintiff’s contract he agreed to furnish to the Board of Building Commissioners correct and accurate estimates of the materials put into the building by the contractors ; that the plaintiff’s specification required a certain number of feet of iron coil to be placed in the north wing of the building; that the plaintiff negligently certified to the Building Commissioners that the required quantity of coil had been put
in, and that the Commissioners, relying on his certificate, paid for it; that in fact a less quantity of coil had been put in; that it was the plaintiff’s duty under his contract to know the quantity actually put in; that the Commissioners did not and could not then know the fact; and that it came to their knowledge after the plaintiff’s discharge.
3. That the plaintiff put, or procured to be put, into the building a defective heating apparatus, not such as his contract bound him to see put in.
4. That “by the contract and specifications thereto attached” the plaintiff was to procure to be put into the building certain water-closets ventilating downward, but procured to be put in water-closets ventilating upwards ; and agreed to procure to be put in sufficient plumbing, but procured to be put in insufficient plumbing; and agreed to procure to be put on the building a suitable roof, but procured to be put on an insufficient roof.
The court said, in substance, as to the first and second amendments here mentioned, that “ the plaintiff made his con“ tract as an architect; and should therefore be held to at least “ reasonable skill in his calling, both in planning the building “ and in superintending its construction. It may perhaps be “ doubted if he should be held responsible for a perfect plan or “ for perfect superintendence in every detail of such a build“ ing, if such things be practicable. It may perhaps be doubted “ if he should be held responsible in damages for all incidental “ failures in detail of foresight or of oversight, consistent with “ proper architectural skill and reasonable diligence. He did “ not guarantee perfection of the plan or perfection of the
ARCHITECT DOES NOT GUARANTEE PERFECTION OF PLAN
OR PERFECTION OF BUILDING.
“ building. Under his contract he became an inferior servant “ of the State, to perform duties under control of superior ser“ vants of the State, who were, indeed, pro hac vice, the State “ itself. He prepared plans for the approval of the Commis“ sioners. They might have rejected the plans submitted, and “ called for others. They were made the judges of the plans, “ and of their sufficiency.
RELATION OF COMMISSIONERS AND ARCHITECT.
“ The Commissioners, not the architect, had to determine “ the plan. When the Commissioners accepted the plaintiff’s “ plan, they ratified it. His superintendence was also subject “ to their oversight and control. They were made judges of “ the competency of the superintendent. They were made “ judges of the sufficiency of his superintendence, and could “ have dismissed him at pleasure. They must therefore be “ held to have been satisfied with his superintendence until his “ dismissal. Indeed, they seem to have ratified his superinten“ dence, by accepting the building which he had superintended, “ without apparent objection. Doubtless there might be defects “ in the plans or the execution of them, patent to an expert, “ latent to an inexpert. For such the plaintiff, not the Com“ missioners, might be liable. But so far as the plans were “ equally intelligible to the Commissioners and the plaintiff, “ and so far as these pleadings disclose, the Commissioners as“ stimed responsibility for the plans when they adopted them. “ And so far as defects of construction in the building were “ equally open to detection by the Commissioners and the “ plaintiff, on the completion of the building, and so far as “ these pleadings disclose, the Commissioners assumed responsi bility for them when they accepted the building. It is “ thought proper to say so much, because this cause bears some “ appearance of having grown out of controversy in relation to “ their respective duties between the Commissioners and their “ superintendent. But what has been said is not to be un derstood as an intimation that failure of the Commis“ sioners in their duty would under any or all circumstances “ excuse the plaintiff’s want of adequate skill or reasonable “ diligence in the performance of his duty. He may, notwith“ standing what the Commissioners may have done or left un“ done, be liable to the State for damages resulting from unskil“ fulness or negligence. But there is certainly nothing here “ pleaded on which such liability of the plaintiff can be sus tained.”
ARCHITECT NOT TO BE CONFOUNDED WITH BUILDER.
In regard to the amendments here numbered 3 and 4, the court said, “ All this appears to confound the plaintiff’s con
tract to furnish plans for the building, and superintend its1 Shipman vs. State, 43 Wis. 381.