Fire Proof Building Co. v. First National Bank

Headnote

Building contract, construction of—Authority of supervising architect to order new work—Sub-contractor, right of to recover for alleged extra work against party for whom the building is erected.

Appeal from judgment entered on verdict of jury. Action to recover from defendants for certain work done a¡nd materials furnished in a building erected by

the defendants, under direction of one Fuller, of the firm of Peabody & Stearns, the architects employed by the defendants. The trial judge submitted the question to the jury whether or not the defendants had conferred any apparent authority on the architects to order the work for them. The jury found a verdict for the defendants.

The Court at General Term said :—“ An examination of the testimony fails to show that the work was ordered by the architects on behalf of the defendants, or that the architects had any authority to make any contract for defendants. The architects were employed by the defendants to make plans and specifications for the building, to get estimates and superintend the erection of the buildings.

“ They prepared plans and specifications and the defendants made a contract with one Darragh to construct the building for a sum named, under the direction of the architects, according to the plans and specifications, and that contract provided in case any work done or materials furnished by said Darragh should be unsatisfactory to said architects, the said Darragh would, on being notified by the said architects, remove such unsatisfactory work or materials and supply the place thereof with other work and materials satisfactory to said architects ; and by that contract the authority of the architects was expressly limited to such changes as would involve no additional expense. They, however, had authority to rej ect work done under the contract, and when work was so rejected Darragh was bound to replace it. The plaintiff made a contract with Darragh to do certain work included in his contract, and the superintendent of the plaintiff read the Darragh contract. Certain work of plaintiff was rejected by the architects, and they directed plaintiff in the presence of Darragh to replace it. Taking plaintiff’s version of the conversation it seems to be clear that no new contract was made. Darragh was, under his contract, bound to remove the arches

that had sagged and supply their place with other work and materials satisfactory to the architects, and an order to Darragh and his sub-contractor to comply with the contract was not a new contract for which defendants were liable to pay in addition to the price named in the original contract. There ivas no promise to pay for the work ordered and nothing from which the jury could find an implied promise. Nor do I think there was any evidence that the architects had any authority, either express or implied, to make a contract for new work on behalf of the defendants. The person with whom it is claimed the agreement was made, under oath, stated that he had no such authority. By the contract with Darragh, his authority was expressly limited to such changes as shall involve no additional expense, and it was provided that no alterations or additions were to be paid for, unless the same were directed by the defendants in Avriting. The employment as architects to superintend the building and see that the persons with whom the defendants had contracted performed their contracts, Avould not give the architects authority to make new contracts. In no aspect of the case are the defendants liable to the plaintiff. The contract with Darragh Avas clearly competent. Plaintiff was sub-contractor, and its superintendent saw and read the principal contract. It Avas also clearly competent as fixing the authority conferred on the architects.”