CHAPTER XII. THE BUILDER'S DUTIES TOWARD THE ARCHITECT. FTER the builder has signed his contract, agreeing to do certain work under the supervision, according to the directions, and to the satisfaction of a certain architect, he must see that his promises in this respect are strictly complied with. Many builders, especially in the country, where work is very commonly done from the builder's own plans, and without the supervision of an architect, appear to be tormented by jealousy of any architect under whose direction they happen to be placed, and, notwithstanding their promise in their contract to obey his instructions, take pleasure in disregarding them, and in varying wantonly from his drawings, apparently with no object except to show their independence of him. These actions are not only very annoying to the architect, but are decidedly injurious to him, as the effect of the building, as a work of art, may be ruined by slight variations in the projection of a cornice, or the spacing of string-courses; yet, if the materials and workmanship are good, so that the builder cannot be accused of cheating his employer, the architect dislikes to delay the structure by ordering, as he has an undoubted right to do, the portions incorrectly executed to be pulled down, and rebuilt in accordance with the drawings to which the builder has agreed to conform. Moreover, he knows by experience that the owner is likely, if he says anything about the matter, to consider him conceited and unreasonable in making so much fuss about conformity Builder Must Keep His Promises. Importance of Satisfying the Architect. Clark vs. Trustees vs. 5 Bradw. 567. with his design, which, as the builder maintains, is no better than any carpenter could make, and not so good as the modification which has already been executed; so that, unless he is sure that the owner will support him, even to the extent of waiting a little longer for his house, in demanding exact compliance with the plans, he will probably let the matter go, and content himself with a resolution never to have anything more to do with that builder. Such conduct as this, while dishonorable and wrong, is extremely dangerous for the builder. It will be shown later, by many examples, that if the owner should choose to take the architect's view of the matter, the contractor may be compelled to correct every intentional or accidental variation from the plans to which the architect has objected, even if he should have to pull down and rebuild the house from the foundations to do so. Where the builder finds himself in a predicament of this sort, he usually tries to escape from it by alleging that he did not understand the plans, or that they were obscure, or impracticable; and it is well to be forewarned that this defence would avail him nothing before a court. It has been held by the two highest courts of Illinois that "a contractor is not excused for "not understanding the plans. His undertaking to erect a "building in accordance with certain drawings and specifica"tions implies that he does understand them, and he cannot "escape liability on the ground that he exercised ordinary skill "and care to understand them, and failed to comprehend them. "In such a case, if there is obscurity in the drawings, con"tractors must apply to the architect for directions, where "work is to be done under the direction of an architect. If "they rely on their own judgment, they must take the conse"quences." In regard, also, to the clause embodied in most building contracts, which provides that the work shall be done to the satisfaction of the architect, and that payments are to be made only on the production of his written certificate that he is satisfied with it, the builder may find that the dissatisfaction which he has given the architect a right to feel may show itself very unpleasantly when he calls for his final payment. Under such a clause, even though no important violation of the contract may have been committed, if the architect honestly believes that the building has not been carried out in entire compliance with the drawings and specifications, and is therefore worth less to the owner than it would have been if the contract had been strictly performed, it is not only his right, but his duty, to make such deduction from the contract price as he thinks fair; and the builder will not be permitted to appeal from his decision on the ground that he ought to have been satisfied, or that he was unreasonable in not being so. In fact, to agree to do any sort of work to another person's satisfaction is a more serious matter than most people suppose. The majority of mankind are easy-going and honest, and would rather accept something that they did not want than oppress a person who had agreed to furnish them something different; but there is no question that if a man makes a contract for a certain thing, he is entitled to receive just that thing, if he chooses to require it; and if he stipulates that the object shall he satisfactory to himself, or to another specified person, it must be made satisfactory before he is obliged to accept it, and he need not give any reason for his dissatisfaction, provided it is sincere, and is not pretended for the sake of escaping from a just obligation. A sculptor once secured a commission for making a portrait bust through a third person, who, in soliciting the work for the sculptor, said that the lady for whom the bust was to be made "need not take it unless she was satisfied with it." The bust was artistically executed, and was a good likeness of the person represented, and was made in accordance with the suggestions of the lady; but, when it was done, she said that she would not take it or pay for it. The case was brought into court, and the plaintiff proved that the defendant's dissatisfaction was unreasonable, and was due to her ignorance of the necessary qualities of sculpture in white Satisfac tion. Zaliski vs. 44 Conn. 218. See also Brown vs. 113 Mass. 136. Smith vs. 3 Denio, 73. Glacius vs. 50 N. Y. 145. Gibson rs. 39 Mich. 49. See also Clarke vs. Watson, 114 Eng. C. L. 278. Scott vs. Corp. Liverpool, 60 Eng. C. L. 334. Moore vs. Goodwin, 43 Hun. 534. Hoffman vs. material; but the Supreme Court of Connecticut said that "he "who contracts to do work which will satisfy one, does not "make out a case by showing that the work done will be satis"factory to ten thousand others"; and held that the contract was not performed, and that the plaintiff could not recover. In a somewhat similar case, decided in Michigan, the plaintiff called on a man, and solicited the privilege of making a portrait of his deceased daughter. He said he would take a small photograph, and send it away to be enlarged and finished, and when it was done, if it was not satisfactory to him in every particular, he need not take it or pay for it. The picture was done, and shown to the defendant, who was dissatisfied with it, and refused to accept it. The plaintiff endeavored to ascertain what his objections to it were, but could not learn clearly. He then sent the picture back to the artist, to be changed. The next day, he received a letter from the defendant, repeating that the picture was not satisfactory, and that he declined to take it, or any other similar picture, and countermanding the order. When the altered picture was received from the artist, the plaintiff took it to the defendant, who refused to look at it, and he did not see it until the trial of the suit, when he examined it, and found the same objec tions still existing. The Supreme Court held that, under the agreement, the defendant was the only one to decide whether the picture was satisfactory, and that he had a right to say whether he would accept or pay for it. In the same manner, where it was agreed that a portrait should be paid for only if the defendant's "friends" should decide that it was a good likeness, it was held in New York that the plaintiff could not recover, although the jury were satisfied that it was a good likeness. In this case, as no particular persons were named as the "friends" to whom the decision was to be confided, the plaintiff's counsel argued that the provision was void from being too indefinite; but the court thought that it was sufficiently definite. In these cases, it was distinctly agreed that the work should be done to the satisfaction of some specified arbiter. Where this stipulation is not made, it will rest with the jury to say whether it has been properly performed. In a case where a man had a portrait of a yacht painted, it was held in New York that the employer was not the sole arbiter as to whether the work had been properly performed, unless there had been a stipulation to that effect. It occasionally happens in building contracts that two persons are named, to whose satisfaction the work must be done; these two being sometimes the architect and the owner, or sometimes the architect and a superintendent. In these cases, it seems to be the law that it is only necessary to satisfy one of them, although much would depend upon the wording of the contract. A contract in Wisconsin provided that the work should be done in a good, substantial and workmanlike manner, to the satisfaction of the architect; and, further on, it said that the work was to be executed to the full satisfaction of the architect, and to the satisfaction of the owner. The court held that this last clause was put in the contract only to prevent changes of plan or design without the owner's approval, and that, if no such change was made, and the architect accepted the work, the contract was fulfilled. So where a contract said that certain work should be done "to the satisfaction of the architect or his assistant or superintendent," it was held that work done to the satisfaction of either party named complied with the contract, and that it was not required to do it to the satisfaction of both. Bassford vs. Oelrichs, 40 Hun. 637. Tetz vs. Butterfield, 54 Wis. 242. Vermont St. Wildey vs. Paw Paw, 25 Mich. 419. |