ARCHITECT, OWNER & BUILDER BEFORE THE
LAW. 1 —V.
CONTRACT THROUGH ADVERTISEMENT. 2
A VERY common way of engaging the services of an architect is through advertisement. A person, or, more commonly, a public body, wishing to build, advertises in the newspapers, or sends out circulars, inviting architects to send in competitive designs, and proposing certain inducements, usually in the way of a prospect of employment, for them to do so. Where this is done, every architect who prepares and sends in designs in accordance with the terms of the circular is thereby made a party to a valid contract between himself and the parties issuing the circular or advertisement, which he can enforce in any court, if the advertiser is responsible for his actions, or is authorized to bind any one else. This last is an important reservation, as committees and public officers often exceed their authority in such matters, and their dupes find, after it is too late, that no one is bound by their action. Details on this point will be given later, in treating of builders’ contracts.
Where the advertiser is responsible for his acts, or is properly authorized to act for some one else, the stipulations of the contract between him and any or all persons who comply with the terms of his invitation are precisely those of the written or printed invitation or advertisement, without variation or modification of any kind.
STRICT ADHERENCE NECESSARY TO TERMS OF COMPETITION. 3
If this principle were more fully recognized by competing architects, and by the promoters of competitions, and more energetically enforced by persons who suffer from the violation of it, architectural competitions would be much more satisfactory affairs than they are now. There is no question that where the time for submitting designs is limited, or where the proposed cost is restricted, or the details of accommodation specified, or the scale of the drawings, or the manner of rendering, exactly defined, only those designs which fulfil the conditions are entitled to be considered, and their authors could
probably prevent, by injunction, the consideration of any which did not comply with the instructions, or, if one should be chosen which violated the stipulations, could very possibly recover damages for the breach of the contract made with all of them by the failure to award the premium in the manner agreed.
The most important case of the kind which has yet been decided in this country involved a slightly different point, the plaintiff having been deprived of the advantage promised by the invitation, after his plan had been adjudged to be the best.
The St. Louis Exposition and Music Hall Association, through its Secretary, sent to Mr. Thomas Walsh, among other architects, a document reading as follows:
“ Dear Sir, — At a meeting of the Board of Directors of the St. Louis Exposition and Music Hall Association, held on the 18th day of April, 1883, the following resolutions were adopted :
“ First. That all architects, residents of this city, and five non-residents, he invited to prepare and submit designs.
“Second. That from those presented by residents, seven, which shall be considered the most meritorious, shall be accepted and awarded five hundred dollars ($500) each, and the five presented by non-residents shall each be awarded the same amount. All designs for which you pay five hundred dollars ($500) shall be the property of the Association.
“ Third. That it should be understood that any foreign architect may submit a design, but if not accepted as the most meritorious of all, he will receive no compensation, and his design shall be returned.
“ Fourth. The architect who is successful shall not receive five hundred dollars, but he shall be engaged as architect and superintendent, and shall be paid, for performing such duties, the usual commissions as adopted by the American Institute and the St. Louis Institute of Architects.
“ Fifth. That all architects entering for competition shall so notify the president or secretary on or before May 5, 1883.”
There were other stipulations, as to scale of drawings, etc., and one that the cost should not exceed $400,000.
Mr. Walsh prepared drawings in accordance with this document, and his plans and “ specifications ” (perhaps description) “ were,” as his petition said, “ upon examination and consideration by the defendant and its Board of Directors, considered and declared as the most meritorious of all those that had been submitted to it under said proposal, and that the same were accepted .by said defendant as such, and thereby the plaintiff became and was the successful architect within the purview and meaning of said proposal; and the plaintiff says that the defendant after so accepting his designs, plans, elevations, sections and specifications, retained the same, and still retains the same, and is now using the same, in part, in the construction of the building.”
The petition further averred the plaintiff’s tender and offer to assume and perform the work of architect and superintendent, and his present readiness and willingness to assume, perform and discharge the same, and asserted that “ the defendant, wholly ummindful of and in disregard of its just and legal obligations and duty in the premises toward the plaintiff, has refused, and still does refuse, to engage the plaintiff as architect and superintendent as aforesaid, to the damage of the plaintiff in the sum of twenty thousand dollars.”
The Circuit Court sustained the defendant’s demurrer to this petition, on the ground that it did not state facts sufficient to constitute a cause of action. No question was raised as to the sufficiency of the proposal and acceptance to constitute a binding contract, but the defendant objected that nothing in its proposal implied an obligation, in any event, to employ as architect and superintendent the person whose design should be found the most meritorious or acceptable of all that might be submitted, and that, therefore, the plaintiff had no rio-ht of action for the defendant’s refusal to employ him.
The plaintiff contended that such obligation appeared in the fourth clause of the proposal, which said : “ The architect who is successful shall not receive $500, but he shall be engaged as architect and superintendent,” etc.
The case was taken to the Court of Appeals, which, after reviewing the facts, said : “ The question is, then, who is the person intended by the expression, £ the architect who is successful,’ and to whom the promise is made that he shall be engaged as architect and superintendent upon the terms specified?” The defendant answered that the expression meant, not the architect presenting the best plan, but the one who should be, in fact, employed by the defendant. “In other words,” said that the Court, “the defendant means only to promise that the one who shall be, in fact, employed as architect and superintendent shall ‘be engaged as architect and superintendent.’ The unreasonableness of this interpretation is not limited by its imputation of tautology and surplusage.
1 Continued from Page 71. No. 660, Aug. 18,1888.
2 Symmes v. Frazier, 6 Mass. 344; Loring v. City of Boston, 7 Metcalf 409; Wentworth v. Day, 3 Metcalf 352; Gilmore v. Lewis, 12 Ohio 281; Hunt v. City of Utica, 18 N. Y. 442; Pierson v. Morch, 82 N. Y. 503; Ryer v. Stockwell, 14 Cal. 134; McLeod v. Meade, 77 Cal. 87; Furman v. Parke, 1 Zabriskie 310; England v. Davidson, 11 A. & E. 856; Lancaster v. Walsh, 4 M. & W. 16; Williams v. Cowardine, 4 B. & Al. 621.
3 Walsh v. St. Louis Exp., 16 Mo. App. 502. Affirmed, 90 Mo. 459.
Evangelical Church for Wiesbaden. From Deutsche Bauzeitung.
LAW. 1 —V.
CONTRACT THROUGH ADVERTISEMENT. 2
A VERY common way of engaging the services of an architect is through advertisement. A person, or, more commonly, a public body, wishing to build, advertises in the newspapers, or sends out circulars, inviting architects to send in competitive designs, and proposing certain inducements, usually in the way of a prospect of employment, for them to do so. Where this is done, every architect who prepares and sends in designs in accordance with the terms of the circular is thereby made a party to a valid contract between himself and the parties issuing the circular or advertisement, which he can enforce in any court, if the advertiser is responsible for his actions, or is authorized to bind any one else. This last is an important reservation, as committees and public officers often exceed their authority in such matters, and their dupes find, after it is too late, that no one is bound by their action. Details on this point will be given later, in treating of builders’ contracts.
Where the advertiser is responsible for his acts, or is properly authorized to act for some one else, the stipulations of the contract between him and any or all persons who comply with the terms of his invitation are precisely those of the written or printed invitation or advertisement, without variation or modification of any kind.
STRICT ADHERENCE NECESSARY TO TERMS OF COMPETITION. 3
If this principle were more fully recognized by competing architects, and by the promoters of competitions, and more energetically enforced by persons who suffer from the violation of it, architectural competitions would be much more satisfactory affairs than they are now. There is no question that where the time for submitting designs is limited, or where the proposed cost is restricted, or the details of accommodation specified, or the scale of the drawings, or the manner of rendering, exactly defined, only those designs which fulfil the conditions are entitled to be considered, and their authors could
probably prevent, by injunction, the consideration of any which did not comply with the instructions, or, if one should be chosen which violated the stipulations, could very possibly recover damages for the breach of the contract made with all of them by the failure to award the premium in the manner agreed.
The most important case of the kind which has yet been decided in this country involved a slightly different point, the plaintiff having been deprived of the advantage promised by the invitation, after his plan had been adjudged to be the best.
The St. Louis Exposition and Music Hall Association, through its Secretary, sent to Mr. Thomas Walsh, among other architects, a document reading as follows:
“ Dear Sir, — At a meeting of the Board of Directors of the St. Louis Exposition and Music Hall Association, held on the 18th day of April, 1883, the following resolutions were adopted :
“ First. That all architects, residents of this city, and five non-residents, he invited to prepare and submit designs.
“Second. That from those presented by residents, seven, which shall be considered the most meritorious, shall be accepted and awarded five hundred dollars ($500) each, and the five presented by non-residents shall each be awarded the same amount. All designs for which you pay five hundred dollars ($500) shall be the property of the Association.
“ Third. That it should be understood that any foreign architect may submit a design, but if not accepted as the most meritorious of all, he will receive no compensation, and his design shall be returned.
“ Fourth. The architect who is successful shall not receive five hundred dollars, but he shall be engaged as architect and superintendent, and shall be paid, for performing such duties, the usual commissions as adopted by the American Institute and the St. Louis Institute of Architects.
“ Fifth. That all architects entering for competition shall so notify the president or secretary on or before May 5, 1883.”
There were other stipulations, as to scale of drawings, etc., and one that the cost should not exceed $400,000.
Mr. Walsh prepared drawings in accordance with this document, and his plans and “ specifications ” (perhaps description) “ were,” as his petition said, “ upon examination and consideration by the defendant and its Board of Directors, considered and declared as the most meritorious of all those that had been submitted to it under said proposal, and that the same were accepted .by said defendant as such, and thereby the plaintiff became and was the successful architect within the purview and meaning of said proposal; and the plaintiff says that the defendant after so accepting his designs, plans, elevations, sections and specifications, retained the same, and still retains the same, and is now using the same, in part, in the construction of the building.”
The petition further averred the plaintiff’s tender and offer to assume and perform the work of architect and superintendent, and his present readiness and willingness to assume, perform and discharge the same, and asserted that “ the defendant, wholly ummindful of and in disregard of its just and legal obligations and duty in the premises toward the plaintiff, has refused, and still does refuse, to engage the plaintiff as architect and superintendent as aforesaid, to the damage of the plaintiff in the sum of twenty thousand dollars.”
The Circuit Court sustained the defendant’s demurrer to this petition, on the ground that it did not state facts sufficient to constitute a cause of action. No question was raised as to the sufficiency of the proposal and acceptance to constitute a binding contract, but the defendant objected that nothing in its proposal implied an obligation, in any event, to employ as architect and superintendent the person whose design should be found the most meritorious or acceptable of all that might be submitted, and that, therefore, the plaintiff had no rio-ht of action for the defendant’s refusal to employ him.
The plaintiff contended that such obligation appeared in the fourth clause of the proposal, which said : “ The architect who is successful shall not receive $500, but he shall be engaged as architect and superintendent,” etc.
The case was taken to the Court of Appeals, which, after reviewing the facts, said : “ The question is, then, who is the person intended by the expression, £ the architect who is successful,’ and to whom the promise is made that he shall be engaged as architect and superintendent upon the terms specified?” The defendant answered that the expression meant, not the architect presenting the best plan, but the one who should be, in fact, employed by the defendant. “In other words,” said that the Court, “the defendant means only to promise that the one who shall be, in fact, employed as architect and superintendent shall ‘be engaged as architect and superintendent.’ The unreasonableness of this interpretation is not limited by its imputation of tautology and surplusage.
1 Continued from Page 71. No. 660, Aug. 18,1888.
2 Symmes v. Frazier, 6 Mass. 344; Loring v. City of Boston, 7 Metcalf 409; Wentworth v. Day, 3 Metcalf 352; Gilmore v. Lewis, 12 Ohio 281; Hunt v. City of Utica, 18 N. Y. 442; Pierson v. Morch, 82 N. Y. 503; Ryer v. Stockwell, 14 Cal. 134; McLeod v. Meade, 77 Cal. 87; Furman v. Parke, 1 Zabriskie 310; England v. Davidson, 11 A. & E. 856; Lancaster v. Walsh, 4 M. & W. 16; Williams v. Cowardine, 4 B. & Al. 621.
3 Walsh v. St. Louis Exp., 16 Mo. App. 502. Affirmed, 90 Mo. 459.
Evangelical Church for Wiesbaden. From Deutsche Bauzeitung.