Wherever the architect acts as referee to determine matters in dispute he should of course act with impartial justice towards the parties. As he is employed and paid by the owner, and as his functions under the building contract are largely for the purpose of protecting the owner's interest, it may be somewhat difficult for him to take an unbiased attitude. Isis position is in fact anomal ous. Engaged and paid by the owner, often with a personal interest to keep the cost within fixed limits, looking chiefly after the inter ests of the owner, for whom he may be for some purposes the agent, he is nevertheless called upon to weigh certain matters with a fair and undiscriminating regard for the rights both of the owner and of another person having directly opposite interests. Yet the refer ence of disputed points to him assumes that he will take such an impartial attitude, and the binding force of his decision would be destroyed if it could be shown that he had decided a question not with judicial impartiality, but as a partisan. It may therefore be said that in his function of adjusting disputes, the architect acts in a quasi-judicial capacity.
As to Inspection. The ordinary contract provides that the contractor shall furnish proper facilities for inspection by the archi tect, and shall replace materials and take down work condemned by the architect as unsound, improper or failing to conform to the contract. The architect is under obligations to the owner to use reasonable diligence to see that the materials used and the work done conform to the plans and specifications, and will be liable for damage caused by failure to use such diligence. Nevertheless the matter of inspection is so related to other functions of the architect. such as the granting of certificates, and the settlement of disputed points, that it seems the architect must, in many cases at least, act in a quasi-judicial capacity, rather than as agent for the owner, in making in spections.
The architect should require the contractor to pull down and to do over any work visibly not in accordance with the plans and specifications. The exact means by which the architect may make his inspection are not defined. In one ease it wits held that the architect night properly drill enough holes in metal columns reasonably to satisfy himself they were of the required thickness. Of course any method of inspection which substantially injured or weakened the work would not under ordinary circumstances be permissible. Where parts of the work are concealed before the architect has had an opportunity to inspect them, assuming that the architect was properly performing his duty of inspecting and that such concealment when made was a necessary part of the work, it would seen that the architect could have the covered part removed so that he may inspect the interior. If this interior should prove to be made of poorer material or «Workman ship than that called for by the contract, the architect might order it removed and replaced correctly, and the cost of the tearing down for inspection, the removal, and the replacing should all be paid for by the contractor. But if the interior proved to be according to the contract, it world seem that the owner should pay the cost of the tearing down and rebuilding, and that allowance for any delay caused thereby should be made to the contractor. But when
the architect delays or is remiss in his inspection or in making objections to the work or material, and in consequence thereof parts of the work or material are concealed without any wrong in tent on the part of the contractor, but in the ordinary course of the work, then it would seem that the architect should bear the expense of removing the concealing parts even when the concealed parts are not in accordance with the plans and specifications. Again, it seems that if the contractor concealed part of his work for the purpose of avoiding inspection of it, and such concealment was in no way due to wrongful delay in inspection by the archi tect, then the contractor should pay the cost of tearing down, re moving and replacing the concealing parts, even though the in terior proved to be in accordance with the plans and specifications. In short, the builder must give the architect a reasonable oppor tunity to inspect the work and materials, and the architect on his part must use his right of inspection within a reasonable time and iu a reasonable manner.
In view of the above observations it is desirable to insert in the contract a provision that the inspection of work which cannot be examined properly during the architect's ordinary visits of supervision, shall be made at the expense of the contractor on the demand of the architect.
As to Other Powers Under the Building Contract. Wher ever any act of the architect has by the building contract been given a certain force as regards owner and builder, the architect must be careful to make his action exactly like that described in the contract in order that the agreed force may attach to it. Whatever authority or power is given the architect is strictly con strued by the courts; that is, the architect must exercise his au thority or power strictly in the manner provided therefor in the contract, and if he exercises it in any other manner, it is not bind ing on the other parties. For example, an architect who may by the contract give written orders for extras or for variations from the contract, has no authority to give oral orders, and the owner will not be bound by any such oral orders. -heat constitutes a written order for variations from.the contract is often a very diffi cult question to determine, Some courts hold that detailed plans are written orders for variations from the contract as represented by general plans, while other courts hold that they are not written orders within the meaning of the contract. This is often an im portant matter, because if there is a variance between the general and detailed plans, and the builder constructs according to the detailed plans, the contract having been made to construct accord ing to the general drawings or plans, and the architect having au thority to order variations by written orders only, then the builder cannot recover the contract price unless such detailed plans are con sidered as constituting written orders within the meaning of the contract.