McIntosh v. Hastings

Barker, J. The defendant, desiring to alter and repair a building and erect a new structure on an adjoining lot, employed an architect to make plans and superintend the work of construction. Whether the architect was explicitly instructed not to order any extra work without the defendant’s knowledge and consent, was in dispute at the trial, which was without a jury. The plaintiff contracted in writing to do a portion of the work for a specified price. The action is brought to recover the sum of forty dollars for carting to the building mortar which was used in plastering included in his contract, and the further sum of forty-nine dollars for repairing certain walls and ceilings, which work the plaintiff claims was not included in his contract. The plaintiff requested several rulings of law based upon the theory that an architect, by virtue of his position, irrespective of the terms on which he is engaged, has authority to bind his employer by contracts for any work done upon the structures concerning which he is employed, notwithstanding his employer’s instructions restricting his authority, if the restrictions are not in fact known to the contractor; and to order extra work without consulting the owner when small matters requiring it occur in the construction or repair of buildings. We do not find it necessary to consider whether there is any foundation for the plaintiff’s theory so far as the claim is for extra work, because the presiding justice has found as a fact that all the items claimed as extra work were included in the plaintiff’s written contract. As to the item for carting the mortar to the building, it is [348] plain that the contract to plaster the structure implied that the plaintiff should furnish the mortar; and that the architect had no power, by virtue of his position merely, and without authority from his employer, so to vary the contract that his employer would be bound to pay an extra price for furnishing the mortar in a way not contemplated by the contract. The presiding justice has found as a fact that the architect was not authorized to make any contract for carting the mortar, and we are aware of no principle which required him to rule that an architect has such authority, as matter of law. Exceptions overruled.