Nave v. McGrane

• Decision Date: 30 December 1910
• Parties: J. H. NAVE, Respondent, v. JAMES B. McGRANE, Appellant
• Court: Idaho Supreme Court

113 P. 82

19 Idaho 111

J. H. NAVE, Respondent, v. JAMES B. McGRANE, Appellant

Supreme Court of Idaho

December 30, 1910

ARCHITECTURE-PLANS AND SPECIFICATIONS-SUFFICIENCY OF-CONFLICT IN EVIDENCE-INSTRUCTIONS.

(Syllabus by the court.)

1. The plans and specifications for the construction of a large building should be definite, specific and certain, in justice both to the contractor and the owner.

2. The testimony of a contractor or contractors to the effect that certain plans and specifications are sufficient will not be taken as against the plans and specifications themselves when they clearly show that they are not definite and certain, and against the recognized authorities on engineering, contracts and specifications and architecture and especially is that true where the plans and specifications will permit the bidder or contractor to figure on first-class and expensive material and are not specific enough to prevent his using an inferior material of a less value.

3. It is the duty of the architect to obtain from the owner all facts necessary to enable him to prepare proper plans and specifications for the proposed building.

4. The architect should prepare a contract as a part of the plans and specifications, between the owner and the contractor for the construction of a proposed structure, in order to intelligently protect both parties thereto, as the owner, as a rule, has not a sufficient knowledge of such matters to know the details of such a contract.

5. Specifications in architecture embrace, as understood by the profession, not only the dimensions and mode of construction but a description of the material, its kind, length, breadth and thickness, and the manner of joining the separate parts. It is a particular and detailed account of a thing; the accurate description of the materials to be used and work to be performed in the construction of a building; a written instrument containing a good, minute description, account or enumeration of particulars.

6. The plans and specifications must be definite and certain as to the kinds and qualities of materials to be used and the class of workmanship, the time within which the building must be completed, the method of making payments, and matters relating to the insurance of the structure during its construction, and unless the plans and specifications are thus definite, the bid to construct the building would only indicate a willingness to negotiate further in regard to the matters not specified.

7. Held, that the specifications in regard to the foundation of the building are not sufficiently specific.

8. Held, that the plans and specifications in regard to the electric wiring of the building are not sufficiently definite and certain.

9. Where the specification for the electric wiring provides that "the wiring must all be according to the latest improved methods according to the city ordinance, and the rules and regulations of the under writes, subject to their inspection," etc., and the court refuses to permit the defendant to show on cross-examination of the plaintiff that if the rules and regulations referred to constitute the National Electric Code, which is accepted as fire underwriters' regulations, such code authorizes the wiring in several different ways and that different kinds of material, some more expensive than others, may be used, the refusal of the court to admit such evidence held, error.

10. The trial court must avoid remarks that tend to give to the jury the impression that counsel is asking foolish questions and trifling with the court, and thus create prejudice.

11. The specifications for plumbing and heating are indefinite and uncertain.

12. There is an implied understanding upon the employment of an architect that the work shall be suitable and capable of being used for the purposes for which it is intended, and apart from questions of public policy this principle would prevent the architect from recovering payment for plans and specifications prepared in violation of law, unless he was so directed to prepare them by the owner.

13. Held, that the court erred in refusing to give plaintiff's instructions 1 to 13, inclusive, or instructions substantially covering the same ground.

APPEAL from the District Court of the Second Judicial District, for the County of Nez Perce. Hon. Edgar C. Steele, Judge.

Action to recover for plans and specifications for the construction of a building. Judgment for plaintiff. Reversed.

Reversed and remanded, with instructions. Costs awarded in favor of appellant.

E. A. Cox, for Appellant.

An architect, like any other professional man, impliedly holds himself out as possessing skill and knowledge which his clients do not have themselves. His position is one of trust and confidence. To this extent the ordinary law of contracts is modified by the relation of the parties. An architect who hands his client a bundle of incomprehensible drawings and figures, which are received by reason of the faith and confidence of his client in himself, cannot contend that his work has been accepted. (Louisiana Molasses Co. v. Le Sassier, 52 La. Ann. 2070, 28 So. 217; 1 Cyc. of Architecture, pp. (bottom number) 350, 351.)

"'Specifications' in architecture embrace, as understood by the profession, not only the dimensions and mode of construction, but a description of every piece of material, its kind, length, breadth and thickness, and the manner of joining the separate parts together." (Gilbert v. United States, 1 Court of Claims, 28, 34; State v. Kendall, 15 Neb. 262, 18 N.W. 85, 90.)

"An agreement to enter into a contract in the future must contain all the material and essential terms of such future contract." (Shepard v. Carpenter, 54 Minn. 153, 55 N.W. 906.)

It is necessary, in order that the meaning of the specifications shall be clear, to indicate whether the proportions by volume shall be taken with the cement in the original package, or in a loose state, after having been emptied from such package. In any case, the engineer should decide which method he proposes to adopt, and reveal this decision in the specifications themselves. (Johnson, Engineering Contracts and Specifications, pp. 137, 138.)

The masonry specification is altogether too indefinite to insure good work. In the one point upon which it is definite, it is contrary to the building ordinance of the city and contrary to the custom and usage of architects. The specification provides that the wall shall be "slushed solid with good lime and sand mortar." (1 Ency. of Architecture, bot. pp. 112, 113, 218.)

Each requirement should be so carefully written that there can be only one interpretation, leaving no doubt as to its true intent. (1 Ency. of Architecture, bot. p. 276, top p. 70.)

A practicing architect should familiarize himself with such laws of the state and such ordinances of the town or city in which he is employed as especially apply to his work. (Idem, bot. pp. 338, 339, 351.)

In case of an architect, as in the case of any other worker, there is always an implied contract that his work shall be suitable and capable of being used for the purpose for which it is prepared. (Straus v. Buchman, 96 A.D. 270, 89 N.Y.S. 226; Hubert v. Aitken, 15 Daly, 237, 2 N.Y.S. 711, 5 N.Y.S. 839; affirmed, 123 N.Y. 655, 25 N.E. 954; Kinney v. Manitowoc County, 135 F. 491, 68 C. C. A. 203; Dunne v. Robinson, 53 Misc. 545, 103 N.Y.S. 878.)

Chas. L. McDonald, for Respondent, cites no authorities.

SULLIVAN, C. J. Ailshie, J., concurs.

OPINION

SULLIVAN, C. J.

This is an action to recover the alleged contract price for certain building plans and specifications, prepared by plaintiff, as an architect, for the defendant. The case was tried by a jury, and from the judgment for plaintiff and from an order overruling a new trial this appeal is taken.

The case presents for determination questions relating to the duties and responsibilities arising from this class of professional services. A number of errors are assigned in regard to the admission and rejection of evidence and the giving and refusing to give certain instructions. The facts are substantially as follows:

The defendant is the lessee of the Bollinger Hotel in Lewiston and the owner of certain adjacent lots, upon which in 1908 he contemplated erecting an addition to the hotel. The plaintiff, an architect, in the same city, learning of the defendant's intention, went to him and solicited the work of drawing the plans and specifications and supervising the construction. Sketches for the building were prepared and then the defendant temporarily abandoned the project. A little later he decided to erect a somewhat larger building for which the plaintiff prepared plans and specifications. That construction was likewise abandoned, and defendant presented a bill for $ 240 for his services up to that time. By agreement the claim was reduced to $ 120, as none of the plans had been used and that amount was paid and accepted in full. In December, 1908, the defendant decided to erect a larger and more substantial building than he had previously contemplated. As an inducement for the defendant to employ plaintiff in connection with the last building, plaintiff offered to let $ 60 of the amount paid him for his prior work apply on the new contract. The parties finally agreed that plaintiff should prepare the plans and specifications. The plaintiff testified that he was to prepare the plans and specifications for three per cent of the estimated cost, to be determined by the lowest responsible bid, if the building was not constructed, and if the building was constructed and he supervised the construction, then he was to receive five per cent of the cost, less $ 60. The defendant testified that if the...