In the first place, it is obvious that rules made by a body of arclitects cannot, as such, bind persons employing the architects. These schedule rates may, however, be of some importance in either one or two ways. In the first place. it may be that the pay ment of these schedule rates is a custom which must be taken to have been in the minds of both parties, and binding upon them as a part of their contract. Custom may be thus shown for the pur pose of proving a term of contract, provided always that the con tract does not expressly contradict the custom.
Such a custom must, however, be reasonable; and courts have been of opinion that schedules similar to this in question were not. as they applied to various cases, reasonable. _Moreover, the cus tom must be proved to have been known to both parties to be af fected, either by showing actual knowledge on their parts. or by showing it to be so general in the locality that the inference is irresistible that both knew it. It is greatly to the advantage of an architect whose compensation has not been fixed by agreement, to be able to hold his employer to this schedule, and therefore im portant to bring notice of the schedule home to the employer. For this purpose the schedule is sometimes printed on an office letter head, and several of these letter heads used in early correspondence before work on plans actually begins. From a lawyer's standpoint this is but a makeshift to take the place of the definite understand ing which should be had.
Even if the schedule is not admissible in evidence as showing a customary terns which is to be read into the agreement between architect and owner, it may be admissible merely to show is reasonable compensation. This is obviously quite a different mat ter from proving it to be a binding clause in the contract. Other evidence can be heard to contradict that furnished by the schedule, and the result in a litigated case would be doubtful.
Unless it is clearly understood that the plans and specifica tions are to be submitted subject to approval, an owner by con tracting with an architect for plans and specifications and by receiving them makes himself liable to pay the architect whether he uses the plans and specifications or not. Where, however, it is understood at the outset that the plans and specifications are made conditional on the approval of the owner, if they do not meet with his approval, the architect cannot recover for them. It would
seem, however, that the owner should give the architect a reason able opportunity to alter the plans and specifications so as to meet his wishes. It has been held that after rejecting and returning the plans several times, the owner is at liberty to procure plans elsewhere.
Practical Suggestions. Before drawing plans an architect should inspect the proposed site, and determine the nature of the soil. If the building is to be on old foundations, he should observe these foundations, and determine their strength. If im portant he should ascertain the character of the subsoil. He should also note any adjoining buildings, and the effect they may have upon the site in question. He should inquire of the owner about any easements, or rights in the owner's land, which other persons may have, such as rights of way, or what in this country are not common, rights of light and air, and about any party-wall agree ment affecting the premises.
The plans when completed should (1) conform with the in structions given the architect, (2) comply with all laws which may be applicable, (3) not infringe the right of any third person, (4) be in accordance with all rules of the architect's science and art. it must be remembered that the employer's mere approval will not be an excuse for faults of which the employer is not a competent judge.
Ln regard to the agreement between the architect and his em ployer as to compensation, and as to powers which the architect is to exercise as the owner's agent, it is best to have a clear agree ment in all respects. While a contract made by word of mouth is (aside from the statute of frauds or other provisions of law) as valid as a contract in writing, the latter has the advantage of precision, af fording a certain means of showing what the agreement was. In all transactions, therefore, in which there is any possibility of dis pute, it is desirable to have communications by letter rather than by word of mouth. An architect should make a practice of hav ing business communications in writing, keeping letter or carbon copies of all letters sent out, with sonic record of mailing, and should preserve all letters addressed to hitn bearing on his business.