used in a particular instance was all that could reasonably be expected of a conscientious architect under the circumstances.
WHAT ARE REASONABLE SKILL AND CARE?
As might be supposed, the testimony on these points in different cases varies considerably, and, as precise information in regard to decisions actually made is of great importance to architects, it seems advisable, even at the risk of making this chapter rather long, to quote enough from actual decisions of courts of record to show what the judges and the witnesses think under given circumstances; and, in one or two instances, where the architect’s side was less favorably presented by his counsel than it might have been, to add some comments, in the hope of assisting the cause of justice in similar cases in future.
In an Illinois case,1 an architect was employed, by an oral contract, to prepare the necessary plans and specifications for a block of buildings, and to let the contracts for the various portions of the work, and superintend the erection. Shortly after the completion of the block, it was discovered that, in consequence of the imperfect construction of certain dwarf walls, upon which the interior portions of the buildings rested, the floors and interior structure had settled several inches, so as to render the buildings untenantable. The owner thereupon caused them to be repaired and put in proper condition, at a cost of about $2,900, and afterwards brought suit against the architect for about this amount, as damages on account of his negligence. At the first trial, before a jury, a verdict was rendered for the plaintiff, awarding him $1,441.76, and judgment was entered accordingly. The plaintiff claimed that the defects in the walls “ arose from their improper construction, and that such construction was permitted by the defendant negligently, and in violation of his duties as sujierintendent.” The architect asserted that after the walls were built, deep trenches were dug, partly near and partly beneath the walls, for the purpose of laying sewer-pipes and constructing cold-air ducts; “ that said ditches were carelessly and imperfectly filled with frozen earth by the workmen in charge of that part of the work, and that the digging and filling of said ditches in that manner was carried on and persisted in by said workmen, with the tacit, if not the express approbation of the plaintiff, in spite of the defendant, and contrary to his express directions and protests.” The evidence on these points was conflicting. The judge of the inferior court, at the instance of the counsel for the plaintiff, gave to the jury the following instruction :
“ The jury are instructed, as a principle of law, that if a “ person employs an architect to draw plans for him, and super“ intend the proper erection of buildings, and such architect is “ made the superintendent in the contracts between the owner “ and the contractors, it is the duty of such architect to exercise “ proper skill and care in the superintending of such buildings, “ and such superintendent should issue no certificate to any of “ the contractors, unless such work appears, upon a proper in“ spection, to be properly done, and to conform to the require“ ments of the respective contracts, plans and specifications, “ unless otherwise directed by the owner.”
The case was appealed to the Appellate Court of Illinois, and the judges of this court commented upon it in the following language:
“ The contract by which the plaintiff employed the defendant “ to act as architect and superintendent was not in writing, and “ the precise terms of said employment are not very clearly “ shown. The plaintiff testifies, in substance, that he instructed “ the defendant to draw up plans and specifications, and let the “ contracts, and he admits that these duties were satisfactorily “ performed. He further testifies that the defendant agreed to “ superintend the erection of the buildings, and see that they “ were put up right; but admits that the details of his duties “ were not discussed, and that nothing was said as to how much “ time he was to spend at the buildings, or what he was to do “ there, or what was to be his compensation.
“ The contracts between the plaintiff and the various contractors “ and builders were in writing, and provided, among other “ things, that each contractor should do his part of the work and “ furnish the materials therefor, agreeably to the drawings and “ specifications made by said architect, in a good, workmanlike “ substantial manner, to the satisfaction and under the direction “ and of said architect, to be evidenced by a writing or certifi“ cate under his hand, and to be paid for as the work should prog“ ress ; provided, that in each case the contractor should obtain a “ certificate from the superintendent or architect, who should in
“ every case retain fifteen per cent from each estimate, such “ fifteen per cent to be paid when the building should be “ completed and accepted; but that no certificate should be “ issued by said superintendent and architect unless the material “ should be on the ground, and the work performed in the build“ ing. The right was reserved to the plaintiff to make such “ changes in the plans of the buildings as he should see fit during “ the progress of the work, and it was provided that in case of “ any difference of opinion between the plaintiff and contractors “ in relation to the contract, the work to be performed under it, “ or in relation to extra work, or to any alterations in the plans, “ drawings or specifications, the decision of said architect “ should be final and binding on all parties.
“ The defendant, on his part, testified in substance, that at the “ time he was employed by the plaintiff as architect and super“ intendent, nothing whatever was said between himself and “ the plaintiff in relation to his duties in superintending the “ work on the building, and that he only undertook to give such “ superintendence as an architect usually gives ; that by uuiver“ sal custom among architects throughout the country, the “ employment and duty of an architect in superintending the “ erection of a building consist in acting as a general adviser, “ director and interpreter of the plans, and in most cases as an “ umpire; that he must stand ready to answer questions, and if “ any defect be called to his attention he must give directions to “ have it remedied; that he should see the bottom of the exca“ vations before the foundations are put in, but that the number “ of visits to the building, and the times of making them, are “ left to his judgment; that, as the work progresses, if anything “ is brought to his attention by the owner or contractor, or by “ personal observation, it is his business to take proper steps in “ relation thereto, and notify the contractor; that before issu“ ing certificates he should visit the building, and see how much “ work had been done; and before issuing his final certificate “ he should examine the work, but only so far as can be seen “ without tearing anything down; that if there is anything to “ excite his suspicion, he is to withhold his certificate until the “ objection is removed, or adjusted by money differences, it “ being sometimes impracticable, where inferior work is done, “ to get it removed, and in such cases settlement must be made “ by deducting for inferior work; that on important buildings “ it is usual to have constantly at the work an overseer em“ ployed by the owner, acting under the directions of the archi“ tect, but that it is not usual to employ such overseer on such “ buildings as those in question in this suit.”
The Appellate Court said that, the nature and extent of the architect’s duties being in controversy, he was undoubtedly bound to exercise reasonable care and diligence in the performance of his duties, whatever thejr were; but what they were was a question of fact, and not of law. Hence, the instruction to the jury was erroneous. Without directing the jury to pass upon the controverted question of fact, and determine what amount of care the defendant bound himself to bestow upon the work, it said that he was bound “ to exercise proper skill “ and care in superintending the buildings,” virtually leaving the whole matter of what it was “ proper ” for the defendant to do to the judgment and caprice of the jury, unrestrained by the evidence in the case. “ The jury, being wholly without a “ guide in the matter, may have been of the opinion that “ ‘ proper ’ care involved the necessity of the defendant being “ constantly present as the building progressed, or of performing “ many acts which were entirely outside the purview of his “ employment as shown by the evidence.”
The instruction as to inspecting the work before issuing certificates was also wrong, as imposing a duty not imposed by the terms of the contract, and not contemplated by the parties. The judgment was reversed, and the cause remanded.
[To be continued.]
The Pagodas op Bukmah. — Mr. James Ricalton, writing of the wonderful old ruins of monuments and shrines at Anuradhapura, the City of the Sacred Bo-Tree in Ceylon, says: “ From the days of the mound-builders down to the Eiffel Tower, man has shown himself to be a monument-erecting being; the Christians have their cathedrals, the Mohammedans have their mosques, and the Buddhists have their shrine-tombs, designated differently in different countries as pagoda, tope, and dagoba. The pagodas of China are entirely dissimilar to those of Burmah, and the dagobas of Ceylon are quite unlike those in either country; yet all serve the one purpose of relic-sepulture. They are not altogether a thing of the past; they are still erected near the temples; but those of modern construction are small and unimportant when compared with those that have withstood biennial monsoons for
two thousand years; even their half-buried ruins are stupendous.”1 Vigeant vs. Scully, 20 Bradwell, 437.
WHAT ARE REASONABLE SKILL AND CARE?
As might be supposed, the testimony on these points in different cases varies considerably, and, as precise information in regard to decisions actually made is of great importance to architects, it seems advisable, even at the risk of making this chapter rather long, to quote enough from actual decisions of courts of record to show what the judges and the witnesses think under given circumstances; and, in one or two instances, where the architect’s side was less favorably presented by his counsel than it might have been, to add some comments, in the hope of assisting the cause of justice in similar cases in future.
In an Illinois case,1 an architect was employed, by an oral contract, to prepare the necessary plans and specifications for a block of buildings, and to let the contracts for the various portions of the work, and superintend the erection. Shortly after the completion of the block, it was discovered that, in consequence of the imperfect construction of certain dwarf walls, upon which the interior portions of the buildings rested, the floors and interior structure had settled several inches, so as to render the buildings untenantable. The owner thereupon caused them to be repaired and put in proper condition, at a cost of about $2,900, and afterwards brought suit against the architect for about this amount, as damages on account of his negligence. At the first trial, before a jury, a verdict was rendered for the plaintiff, awarding him $1,441.76, and judgment was entered accordingly. The plaintiff claimed that the defects in the walls “ arose from their improper construction, and that such construction was permitted by the defendant negligently, and in violation of his duties as sujierintendent.” The architect asserted that after the walls were built, deep trenches were dug, partly near and partly beneath the walls, for the purpose of laying sewer-pipes and constructing cold-air ducts; “ that said ditches were carelessly and imperfectly filled with frozen earth by the workmen in charge of that part of the work, and that the digging and filling of said ditches in that manner was carried on and persisted in by said workmen, with the tacit, if not the express approbation of the plaintiff, in spite of the defendant, and contrary to his express directions and protests.” The evidence on these points was conflicting. The judge of the inferior court, at the instance of the counsel for the plaintiff, gave to the jury the following instruction :
“ The jury are instructed, as a principle of law, that if a “ person employs an architect to draw plans for him, and super“ intend the proper erection of buildings, and such architect is “ made the superintendent in the contracts between the owner “ and the contractors, it is the duty of such architect to exercise “ proper skill and care in the superintending of such buildings, “ and such superintendent should issue no certificate to any of “ the contractors, unless such work appears, upon a proper in“ spection, to be properly done, and to conform to the require“ ments of the respective contracts, plans and specifications, “ unless otherwise directed by the owner.”
The case was appealed to the Appellate Court of Illinois, and the judges of this court commented upon it in the following language:
“ The contract by which the plaintiff employed the defendant “ to act as architect and superintendent was not in writing, and “ the precise terms of said employment are not very clearly “ shown. The plaintiff testifies, in substance, that he instructed “ the defendant to draw up plans and specifications, and let the “ contracts, and he admits that these duties were satisfactorily “ performed. He further testifies that the defendant agreed to “ superintend the erection of the buildings, and see that they “ were put up right; but admits that the details of his duties “ were not discussed, and that nothing was said as to how much “ time he was to spend at the buildings, or what he was to do “ there, or what was to be his compensation.
“ The contracts between the plaintiff and the various contractors “ and builders were in writing, and provided, among other “ things, that each contractor should do his part of the work and “ furnish the materials therefor, agreeably to the drawings and “ specifications made by said architect, in a good, workmanlike “ substantial manner, to the satisfaction and under the direction “ and of said architect, to be evidenced by a writing or certifi“ cate under his hand, and to be paid for as the work should prog“ ress ; provided, that in each case the contractor should obtain a “ certificate from the superintendent or architect, who should in
“ every case retain fifteen per cent from each estimate, such “ fifteen per cent to be paid when the building should be “ completed and accepted; but that no certificate should be “ issued by said superintendent and architect unless the material “ should be on the ground, and the work performed in the build“ ing. The right was reserved to the plaintiff to make such “ changes in the plans of the buildings as he should see fit during “ the progress of the work, and it was provided that in case of “ any difference of opinion between the plaintiff and contractors “ in relation to the contract, the work to be performed under it, “ or in relation to extra work, or to any alterations in the plans, “ drawings or specifications, the decision of said architect “ should be final and binding on all parties.
“ The defendant, on his part, testified in substance, that at the “ time he was employed by the plaintiff as architect and super“ intendent, nothing whatever was said between himself and “ the plaintiff in relation to his duties in superintending the “ work on the building, and that he only undertook to give such “ superintendence as an architect usually gives ; that by uuiver“ sal custom among architects throughout the country, the “ employment and duty of an architect in superintending the “ erection of a building consist in acting as a general adviser, “ director and interpreter of the plans, and in most cases as an “ umpire; that he must stand ready to answer questions, and if “ any defect be called to his attention he must give directions to “ have it remedied; that he should see the bottom of the exca“ vations before the foundations are put in, but that the number “ of visits to the building, and the times of making them, are “ left to his judgment; that, as the work progresses, if anything “ is brought to his attention by the owner or contractor, or by “ personal observation, it is his business to take proper steps in “ relation thereto, and notify the contractor; that before issu“ ing certificates he should visit the building, and see how much “ work had been done; and before issuing his final certificate “ he should examine the work, but only so far as can be seen “ without tearing anything down; that if there is anything to “ excite his suspicion, he is to withhold his certificate until the “ objection is removed, or adjusted by money differences, it “ being sometimes impracticable, where inferior work is done, “ to get it removed, and in such cases settlement must be made “ by deducting for inferior work; that on important buildings “ it is usual to have constantly at the work an overseer em“ ployed by the owner, acting under the directions of the archi“ tect, but that it is not usual to employ such overseer on such “ buildings as those in question in this suit.”
The Appellate Court said that, the nature and extent of the architect’s duties being in controversy, he was undoubtedly bound to exercise reasonable care and diligence in the performance of his duties, whatever thejr were; but what they were was a question of fact, and not of law. Hence, the instruction to the jury was erroneous. Without directing the jury to pass upon the controverted question of fact, and determine what amount of care the defendant bound himself to bestow upon the work, it said that he was bound “ to exercise proper skill “ and care in superintending the buildings,” virtually leaving the whole matter of what it was “ proper ” for the defendant to do to the judgment and caprice of the jury, unrestrained by the evidence in the case. “ The jury, being wholly without a “ guide in the matter, may have been of the opinion that “ ‘ proper ’ care involved the necessity of the defendant being “ constantly present as the building progressed, or of performing “ many acts which were entirely outside the purview of his “ employment as shown by the evidence.”
The instruction as to inspecting the work before issuing certificates was also wrong, as imposing a duty not imposed by the terms of the contract, and not contemplated by the parties. The judgment was reversed, and the cause remanded.
[To be continued.]
The Pagodas op Bukmah. — Mr. James Ricalton, writing of the wonderful old ruins of monuments and shrines at Anuradhapura, the City of the Sacred Bo-Tree in Ceylon, says: “ From the days of the mound-builders down to the Eiffel Tower, man has shown himself to be a monument-erecting being; the Christians have their cathedrals, the Mohammedans have their mosques, and the Buddhists have their shrine-tombs, designated differently in different countries as pagoda, tope, and dagoba. The pagodas of China are entirely dissimilar to those of Burmah, and the dagobas of Ceylon are quite unlike those in either country; yet all serve the one purpose of relic-sepulture. They are not altogether a thing of the past; they are still erected near the temples; but those of modern construction are small and unimportant when compared with those that have withstood biennial monsoons for
two thousand years; even their half-buried ruins are stupendous.”1 Vigeant vs. Scully, 20 Bradwell, 437.