of Saint Antoine at Paris. At the present day the pulpit is most frequently constructed against a pillar, and is generally of wood.
E. Rumler.
ARCHITECT, OWNER & BUILDER BEFORE THE LAW. 1 —IX.
THE LAW IN IOWA.
From the Fontaine des Innocents, Paris. From Havard s ‘‘Dictionnaire de VAmeublement.”
I
N a case in Iowa, an architect was employed to furnish plans, and superintend the erection of a house. 2 After the house was done, the architect brought suit for the amount of his bill, and it then appeared that one of the walls had cracked badly. The architect attributed the cracking to a defect in the foundation at that point. The court said, “ the plaintiff, under “his employment, was bound to furnish proper plans, and to see “ that the house was at least reasonably well constructed. . . .A “house is not constructed with reasonable care, the foundations “ of which are so defective as to cause the walls to crack ” ; and the architect was held liable on the counter-claim for damages, and recovered nothing.
Here the Supreme Court says nothing about the responsibility of the contractor who built the walls, or about the necessity for proving negligence on the part of the architect; this, it thinks, is the legal inference from the existence of the defect; and the decision must be considered as establishing the law in Iowa, at least for the present.
COMPENSATION CANNOT BE RECOVERED FROM TWO PERSONS
FOR THE SAME INJURY.
In New Jersey, a very singular conclusion has been arrived at, in a case decided some years ago. 3 The verdict of the jury in the court below established that a house had been badly built in consequence of the joint neglect of the architect and the contractor. The Supreme Court held that a suit, founded on such neglect, would lie against the architect alone, on the ground that “ where two or more persons cause damage by “contributory misfeasance, each is responsible for the entire detriment,” just as in the case of a gang of robbers, as mentioned above. In this case, the owner had retained a portion of the contract price, on the ground of the imperfection of work and materials, and the architect’s counsel claimed that, as a man cannot get damages from two persons for the same injury, this should be offset against the claim made against the architect. The court held that if the contractor had sued for the contract price, and the defence had been interposed that it was not due on account of the imperfection of the work, and this defence had prevailed, the action against the architect would have been barred ; as if a person recovers indemnification from one wrong-doer, he cannot pursue the other wrongdoer for the same cause of action ; but, in this case, the contractor had not consented to the retention of the money (which would also be held as a satisfaction of the claim), and might at any time bring suit for it, and the owner might be forced to pay it; so that, under the circumstances, it could not be regarded as an absolute satisfaction of the damages embraced in the verdict. “ It is true that in this way the burden of sus“ taining the loss is shifted on to the defendant, as the archi“ tect, from the contractor, who will thus be enabled, so far as “ the present damages are concerned, to recover the money in “ question. But it is to be borne in mind, and the circumstance “ is an additional reason why the money retained cannot be con“ sidered as a satisfaction of this cause of action, that the money “ in question may be kept back by the plaintiff on the foot of “ other damages than those embraced in this suit. P’or it is “not a necessary consequence that the defendant is responsible
1 Continued from No. 820, page 165. 2 Schreiner v. Miller, 67 Iowa, 91. 3 Newman v. Fowler, 8 Vr., 89.
“ for every part of the neglects or misconducts of the contrac“ tor in the doing of the work in question. There was a same“ ness of responsibility only when the negligence of the “ contractor was such as to be discoverable by the exercise of “ reasonable care and skill on the part of the architect; for the “ effects of negligence beyond this measure, the contractor alone “ would be answerable.”
The curious part of this decision is to be found in the reason given by the court for permitting the owner to recover the whole amount of his damages from the architect, at the same time that he retained similar indemnity out of money due the contractor. The court said that the reason why the money that the owner had kept back out of what he owed the contractor was not to be regarded “ as an absolute satisfaction of the damages embraced in the verdict ” was that the contractor “ might at any time bring suit for it, and the owner might be forced to pay it.” On the theory of the court, that the architect and contractor were each responsible for the whole damage, the owner could not be “ forced to pay ” the money unless it was proved that he had not been damaged; and if he had not been damaged, the architect would owe him nothing; so that this system makes the architect guarantee the guilt of the contractor, as well as the penalty. It is as if a man should come into court with an allegation that he had been attacked by two robbers, who had got from him five hundred dollars. He had got his five hundred dollars back, by picking the pocket of one of the robbers, but wanted the court to get five hundred more for him out of the other robber. On the principle here expounded, the court would proceed to do so, on the ground that it might turn out that he had never been robbed at all, so that he would have to give back what he had taken from the first man’s pocket.
THE OBJECTION TO THE THEORY OF CONTRIBUTORY MIS
FEASANCE.
Apart from this, the theory of “ contributory misfeasance ” between the architect and contractor, to account for defects in the work, although convenient for juries who do not like to take the trouble to inquire into the technicalities of building, is less satisfactory in application than the New York and Wisconsin principle, that architects and contractors have each their own peculiar duties, and are responsible only for proved neglect of those duties. Evidently, an architect who knows that the owner, if the contractor succeeds in doing anything wrong, is at liberty to accept the imperfect work, pay the contractor in full, and extort the damage from him, is under the strongest possible temptation to conceal the builder’s bad work or materials, instead of appealing to the owner’s authority to compel him to fulfil his agreement; and contractors are quite aware of the power whicli the theory gives them over the architects under whose direction they work.
THE FRENCH LAW OF ARCHITECTS’ RESPONSIBILITY.
The French law, although nominally very oppressive toward architects, has really come to coincide closely with the modern New York and Wisconsin jurisprudence.
The Code Civil, Article 1792, says, “If the edifice constructed at a fixed price perishes, totally or in part, through vices of construction, even by the vice of the soil on which it is built, the architect and the contractor are responsible for it during ten years.”
This would seem to make the architect the guarantor of the perfection of the contractor’s work, as many people here would like to make him out to be ; but the French courts interpret the law very differently. It is well known, both from the evidence of contemporary writers on architecture and building, and from the history of the discussion which preceded the adoption of this
THE POSITION OF ARCHITECTS IN THE NAPOLEONIC PERIOD. clause in the Code, that in the early part of the present century, and for many years before, the architect was commonly the principal contractor for the building. At that time, the trade guilds still flourished, and one of the rules of the guilds ivas that no member of any guild should contract for or do work belonging to any other guild ; so that the only way to include a whole building in one contract was to make an agreement with some one outside the trades, and let him make sub-contracts for the different portions of the work. The nerson with ‘whom the principal contract was usually made would naturally be the architect, and as, like any other contractor, he would be tempted to save money for himself by surreptitious means,
E. Rumler.
ARCHITECT, OWNER & BUILDER BEFORE THE LAW. 1 —IX.
THE LAW IN IOWA.
From the Fontaine des Innocents, Paris. From Havard s ‘‘Dictionnaire de VAmeublement.”
I
N a case in Iowa, an architect was employed to furnish plans, and superintend the erection of a house. 2 After the house was done, the architect brought suit for the amount of his bill, and it then appeared that one of the walls had cracked badly. The architect attributed the cracking to a defect in the foundation at that point. The court said, “ the plaintiff, under “his employment, was bound to furnish proper plans, and to see “ that the house was at least reasonably well constructed. . . .A “house is not constructed with reasonable care, the foundations “ of which are so defective as to cause the walls to crack ” ; and the architect was held liable on the counter-claim for damages, and recovered nothing.
Here the Supreme Court says nothing about the responsibility of the contractor who built the walls, or about the necessity for proving negligence on the part of the architect; this, it thinks, is the legal inference from the existence of the defect; and the decision must be considered as establishing the law in Iowa, at least for the present.
COMPENSATION CANNOT BE RECOVERED FROM TWO PERSONS
FOR THE SAME INJURY.
In New Jersey, a very singular conclusion has been arrived at, in a case decided some years ago. 3 The verdict of the jury in the court below established that a house had been badly built in consequence of the joint neglect of the architect and the contractor. The Supreme Court held that a suit, founded on such neglect, would lie against the architect alone, on the ground that “ where two or more persons cause damage by “contributory misfeasance, each is responsible for the entire detriment,” just as in the case of a gang of robbers, as mentioned above. In this case, the owner had retained a portion of the contract price, on the ground of the imperfection of work and materials, and the architect’s counsel claimed that, as a man cannot get damages from two persons for the same injury, this should be offset against the claim made against the architect. The court held that if the contractor had sued for the contract price, and the defence had been interposed that it was not due on account of the imperfection of the work, and this defence had prevailed, the action against the architect would have been barred ; as if a person recovers indemnification from one wrong-doer, he cannot pursue the other wrongdoer for the same cause of action ; but, in this case, the contractor had not consented to the retention of the money (which would also be held as a satisfaction of the claim), and might at any time bring suit for it, and the owner might be forced to pay it; so that, under the circumstances, it could not be regarded as an absolute satisfaction of the damages embraced in the verdict. “ It is true that in this way the burden of sus“ taining the loss is shifted on to the defendant, as the archi“ tect, from the contractor, who will thus be enabled, so far as “ the present damages are concerned, to recover the money in “ question. But it is to be borne in mind, and the circumstance “ is an additional reason why the money retained cannot be con“ sidered as a satisfaction of this cause of action, that the money “ in question may be kept back by the plaintiff on the foot of “ other damages than those embraced in this suit. P’or it is “not a necessary consequence that the defendant is responsible
1 Continued from No. 820, page 165. 2 Schreiner v. Miller, 67 Iowa, 91. 3 Newman v. Fowler, 8 Vr., 89.
“ for every part of the neglects or misconducts of the contrac“ tor in the doing of the work in question. There was a same“ ness of responsibility only when the negligence of the “ contractor was such as to be discoverable by the exercise of “ reasonable care and skill on the part of the architect; for the “ effects of negligence beyond this measure, the contractor alone “ would be answerable.”
The curious part of this decision is to be found in the reason given by the court for permitting the owner to recover the whole amount of his damages from the architect, at the same time that he retained similar indemnity out of money due the contractor. The court said that the reason why the money that the owner had kept back out of what he owed the contractor was not to be regarded “ as an absolute satisfaction of the damages embraced in the verdict ” was that the contractor “ might at any time bring suit for it, and the owner might be forced to pay it.” On the theory of the court, that the architect and contractor were each responsible for the whole damage, the owner could not be “ forced to pay ” the money unless it was proved that he had not been damaged; and if he had not been damaged, the architect would owe him nothing; so that this system makes the architect guarantee the guilt of the contractor, as well as the penalty. It is as if a man should come into court with an allegation that he had been attacked by two robbers, who had got from him five hundred dollars. He had got his five hundred dollars back, by picking the pocket of one of the robbers, but wanted the court to get five hundred more for him out of the other robber. On the principle here expounded, the court would proceed to do so, on the ground that it might turn out that he had never been robbed at all, so that he would have to give back what he had taken from the first man’s pocket.
THE OBJECTION TO THE THEORY OF CONTRIBUTORY MIS
FEASANCE.
Apart from this, the theory of “ contributory misfeasance ” between the architect and contractor, to account for defects in the work, although convenient for juries who do not like to take the trouble to inquire into the technicalities of building, is less satisfactory in application than the New York and Wisconsin principle, that architects and contractors have each their own peculiar duties, and are responsible only for proved neglect of those duties. Evidently, an architect who knows that the owner, if the contractor succeeds in doing anything wrong, is at liberty to accept the imperfect work, pay the contractor in full, and extort the damage from him, is under the strongest possible temptation to conceal the builder’s bad work or materials, instead of appealing to the owner’s authority to compel him to fulfil his agreement; and contractors are quite aware of the power whicli the theory gives them over the architects under whose direction they work.
THE FRENCH LAW OF ARCHITECTS’ RESPONSIBILITY.
The French law, although nominally very oppressive toward architects, has really come to coincide closely with the modern New York and Wisconsin jurisprudence.
The Code Civil, Article 1792, says, “If the edifice constructed at a fixed price perishes, totally or in part, through vices of construction, even by the vice of the soil on which it is built, the architect and the contractor are responsible for it during ten years.”
This would seem to make the architect the guarantor of the perfection of the contractor’s work, as many people here would like to make him out to be ; but the French courts interpret the law very differently. It is well known, both from the evidence of contemporary writers on architecture and building, and from the history of the discussion which preceded the adoption of this
THE POSITION OF ARCHITECTS IN THE NAPOLEONIC PERIOD. clause in the Code, that in the early part of the present century, and for many years before, the architect was commonly the principal contractor for the building. At that time, the trade guilds still flourished, and one of the rules of the guilds ivas that no member of any guild should contract for or do work belonging to any other guild ; so that the only way to include a whole building in one contract was to make an agreement with some one outside the trades, and let him make sub-contracts for the different portions of the work. The nerson with ‘whom the principal contract was usually made would naturally be the architect, and as, like any other contractor, he would be tempted to save money for himself by surreptitious means,