The Albany Law Journal, in commenting upon the case at the time, said: "The case is unique in its character, and will doubtless form a precedent, the general rule being that where alterations are ordered to be made they are to be paid for as extras.'

The case was distinguished from others in a later New York decision,' on the ground that the contractor was by his contract bound absolutely and unconditionally to complete the bridge for a certain sum and in a certain time, and that having performed his contract he could not recover additional compensation on the theory that the city warranted the sufficiency of the plans.

The case is an important one and is quoted in the books. It should not be cited as authority for the statement that the contractor is responsible for the sufficiency of the plans he is using, or that the owner or architect is not responsible for the plans that they furnish. It is authority only for the statement that the owner by inviting proposals to do certain work according to certain plans and specifications does not warrant that the plans are correct or practicable, and in the light of other decisions it must be regarded as somewhat doubtful authority of that proposition.

239. Failure of Structure after Completion Due to Insufficient Plans.— In Wisconsin a different rule has been held. A state board of commissioners, under the authority of an act of legislature, had procured and adopted plans and specifications, and entered into a contract with contractors who were to furnish all the materials, and do all the work according to plans and specifications, and under the direction and to the entire satisfaction of the architect. The architect was authorized to vary from such plans, the value of such alterations to be added or deducted from the contract price, and any doubt as to the quality of the materials or workmanship or as to allowances for extras was to be determined and adjusted solely by the architect. Under this contract it was held that the state warranted the plans to be efficient and suitable, and that when a contractor had in good faith, according to the plans and specifications and under the direction of the architect, erected a large portion of the structure, and the materials and work had been accepted, it fell owing to defects and insufficiency of the plans, the state was liable to the contractor for the expense of restoring the portion of the structure which collapsed.'

It has been frequently held that if the contractor has built in strict accordance with the plans and specifications furnished by the owner and in

1 Citing Aiken v. Blood, 12 Ala. 221; Dubois D. & H C. Co., 4 Wend. 285; Hayward v. Leonard, 7 Pick. 181 Wheeden v. Fiske, 50 N. H 125; and see also Marsh v. Richards, 29 Mo. 99; De Boom . Priestly, 1 Col. 206; McClelland v. Linder, 18 Ill., 58; McCormick v. Connolly, 2 Bay. 401; and see Sharpe v. San Paulo R. Co., L. R. 8 Ch. 597; Wade v.

Haycock, 25 Pa. St. 382; and Scrivner v.
Pask, 18 C. B. (N. S.) 785.

Byron v. Mayor, 54 N Y. Super. Ct. 411 [1887].

3 Bentley State (Wis.), 41 N. W. Rep. 338 [1889]. 73 Wis. 416; and see United States v. Behan, 110 U S. 338 [1884]; but see Hooper v. Webb, 27 Minn. 485.

a workmanlike manner he is not liable for the failure of the structure by reason of defective plans,' or that the machine would not work when built.' It was so held when the walls of a building settled and cracked because the footing-stones were too small, the fault being with the specifications and plans and chargeable to the architect.' Defective specifications furnished by owner's engineer have been held to excuse delay on the part of contractor which delay was occasioned by such defects." Likewise when an arch fell because it would not sustain the load imposed upon it, the contractor being bound to follow strictly the specifications and plans, which were so defective that it was impossible to construct a stable arch in accordance with them, the court held that by the terms of his contract he was not bound to build a safe and stable arch notwithstanding the defects in the plans and specifications; that it was enough to exonorate him from blame if the contractor showed that the plans and specifications which he was compelled to follow were defective in themselves; that there was no covenant or warranty by the contractor that the arch when completed should be safe and fit for the purposes for which it was intended. In this case the contractor was prevented from completing the structure by an act of the city, one of the parties, and the contractor was allowed to recover for only what he had actually done up to the time he was required to quit."

In these cases it is well to consider the difficulty of proving that the failure of a structure is due entirely to inherent defects in the plans and specifications, and the greater difficulty of determining in many cases whether a failure is due to neglect on the part of the contractor or to defective plans. The English court in deciding that the owner does not warrant the sufficiency of the plans seems to have foreseen the opportunity that it would afford contractors to escape the consequences of unskillful work and inferior materials by pleading that the plans were defective and it was not therefore their fault. The court said: "If it is held that there is an implied warranty that the work can be done according to the plans and specifications the consequences would be most alarming. The consequences would go to every person who having employed an architect to prepare plans for a house afterwards enters into a contract to have it built according to those plans, and they might arise in any case in which work is invited to be done according to plans and specifications."

8

240. Contracts for Completed Structures Distinguished from Agreements for Work and Materials.-The American courts have distinguished

those cases in which the contractor is merely to build according to certain plans and specifications from those cases in which he is not only to build according to the plans and specifications, but is also to completely finish and deliver up a structure, ready for use as it were.' So where a building. was to be built according to very detailed plans and specifications, and owing to the latent condition of the soil the foundations sunk, the court. held that a stipulation in the contract by which the contractor undertook "to completely finish and fit for use and occupation" the buildings was a covenant by which he was bound.'

To the same effect is a recent case in which the contractor was to construct a well for a certain sum, according to specifications which called for the use in the work of a curb of a certaiu shape, to be made of timber and planking of a prescribed size and quantity. It was held that the contractor could not recover, in addition to the contract price, compensation for work and materials lost by the caving in of the well before completion, notwithstanding it was due to the inadequacy of the curb prescribed in the speci fications."

It is fairly well settled that when a contractor has undertaken to construct works in accordance with plans and specifications furnished by the owner, and he has faithfully executed the work according to such plans and specifications, and in a skillful and workmanlike manner, he is not liable if it fall, fail, or proves worthless."

241. Contractor will be Held to His Guaranty of Sufficiency of Plans and Specifications-If the contractor is to build a structure or make a machine from plans and models furnished by the owner, and, after examining the plans and models he guarantees that the structure will answer its purpose or that the machine will work, he will not be relieved from his liability on the guaranty because the plans furnished him were defective, for he should have ascertained that fact before making the contract. a contract to erect a blast-furnace, and that all the work shall be "done in good and workmanlike manner, and of suitable material, and each part shall be adequate in design, strength, and capacity, and workmanship for the purposes intended, the work to be examined by the owner's superintendent bi-weekly, and finally accepted if to his satisfaction," was held not a

1 Byron v. Mayor, 54 N. Y. Super. Ct. 411 [1887].

Dermott Jones, 2 Wall, 1; see also School Trustees v. Bennett, 3 Dutcher, 515; and see Daegling v. Schwartz, 80 Ill. 320.

3 Leavitt v. Dover (N. H.), 32 Atl. Rep. 156

4 Byron . Mayor, 54 N. Y. Super Ct. 411 Burke v. Dunbar, 128 Mass. 499; MacRitchie v. Lake View, 30 Ill. App.

But

393; Schwartz v. Saunders, 46 Ill. 18; Clark v. Pope, 70 Ill. 128; Lound-berry v. Eastwick, 3 Phila (Pa.) 371; Wade v. Haycock, 25 Pa. St. 382; Graves v. Caruthers, Meigs (Tenn.) 58; Beswick v. Platt, 140 Pa. St. 28; Dargling v. Gilmore. 49 Ill. 248; Rohrman v. Steese. 9 Phila. 185 owner interfered and caused defects. Oother cases cited supra et infra. 5 Giles v. San Antonio F. Co. (Tex.), 24 S. W. Rep. 546.

guaranty that the plant as a whole should be adequate in design, strength, capacity, and workmanship for the purpose intended.

Under a contract with a city to construct a newly-designed apparatus for filtering water, to stand certain tests, the risk that the apparatus will stand the tests and demands made upon it is upon the contractor.

A guarantee clause is not to be construed so as to make a contractor liable for the failure of work to remain in good repair when the plan or design was defective, and the work was done in certain respects according to the express directions of the supervising engineer.'

242. Contract to do Work according to Plans and Specifications Implies an Understanding of Them.-A contract to erect a structure after certain plans and specifications implies an understanding of them on the part of the contractor; and the law will not allow him to escape liability on the ground that he exercised ordinary care and skill to understand and carry them out, but that he failed to comprehend them. He should apply to the engineer or architect to explain the plans and for necessary directions with regard thereto, for if he relies upon his own judgment and makes a mistake he must bear the consequences. Therefore when contractors departed from the working plans, which are a part of their contract, without the consent of the owner, or of his engineer or architect properly authorized, they become guarantors of the strength and safety of the structure, for an express contract admits of no departure from its terms unless by consent of the parties. If, however, material deviations from the plans are made with consent of the owner, the contractor is under no responsibility for its subsequent destruction, whether caused by its own inherent weakness, due to the mode of construction, or from the violence of storms. The structure in this case had been occupied, and to all appearances accepted, until it was blown down."

A contract to complete unfinished work according to the plans and specifications adopted under a prior contract with another contractor does not put the second contractor in the shoes of the former. He is neither responsible for the sufficiency of the plans nor for the work done before he took the job. Likewise a contract to finish a house does not bind the builder to remedy defects in its foundations. A post contractor under a clause of his contract that as the building progresses he will protect the finished work from injury, is not obliged to protect the work done by the first contractor

Sheffield & B. C. I. & Ry. Co. v. Gordon, 14 Sup. Ct. Rep. 343.

Shoenberger v. City of Elgin (Ill. Sup.) 45 N. E. Rep. 434, affirming 59 Ill. App. 384.

MacRitchie v. Lake View, 30 Ill. App. 393; and see MacKnight F. Stone Co. v. New York (Sup), 43 N. Y. Supp. 139.

See Waul v. Hardie, 17 Tex. 553; Sher

man v. Bates, 15 Neb. 18; Smith v. Bristol, 33 Iowa 24.

Clark v. Pope et al., 70 Ill. 129 [1873]; and see Ellis v. Hamlen, 3 Taunt. 52. Clark v. Pope, supra.

Philadelphia Hyd. Wks. v. Schenck, 80 Pa. St. 334 [1876].

Banks v. Moors. 120 Mass. 459; accord, Seymour . Long Dock Co.. 5 C. E. Gr. (N. J.) 396.

from injury from frost between the time the contract was made and when the architect permitted him to commence the work.'

243. Insufficiency of Plans-Liability to Third Parties Injured.-If defective plans and specifications have been adopted by the owner and injury to adjoining property-owners or to strangers results by their use, and not in consequence of poor materials or workmanship furnished by the contractor, the owner is liable for the injuries resulting. It was so held when specifications required that a new building should be anchored to an old one and that a girder should rest upon the same party wall, which fell in consequence of the extra loading. The court held that there was a duty imposed upon the owner to exercise all reasonable care and caution in providing suitable plans and specifications. The contractor has been held not to be liable to third persons for injuries caused by the falling of a structure by reason of defective plans furnished by owner's architect unless he had knowledge that the plans were defective or insufficient, and the structure therefore unsafe. The architect, however, is liable to his employer for damages sustained from defects in the architect's plans, and he may have a counter-claim against the architect when sued for the plans and services as superintendent.**

244. Injuries Resulting from Negligence of Both Parties.-If injury result from the negligence of the contractor as well as from the use of defective plans, both the owner and contractor are liable, and it seems that prosecuting the work under the direction and control of an architect is equivalent to working according to specifications adopted.' If it is impossible to determine what proportion each contributed to the injury, either party is, it seems, responsible for the whole of the damage resulting, and this was so held although the act of one alone might not have caused the entire injury, and even though without fault on his part the same damages would have resulted from the act of the other. If the plans and specifications are in themselves sufficient to secure a safe construction, but the work is insufficiently done by independent contractors, then the latter are liable.

1 Preston v. Syracuse. 92 Hun 301. Boswell v. Laird, 8 Cal. 469 [1859].

3 Lancaster v. Conn. Mut. L. Ins. Co., 92 Mo 460; s. c.. 5 S. W. Rep. 23 [1887]; Wilkinson v. Detroit Steel & Sprg Wks, 73 Mich. 405; Giles v. Diamond State Iron Co. (Del.). 8 All. Ren 368 [1887]; and see Lockwo d v. New York, 2 Hilt. (N. Y) 66; Corbin . American Mills Co.. 27 Coun. 274: Brown v. Aerington Cotton C., 3 H. & C. 511; Goldschmid v. New York (Sup.), 43 N. Y. Sunp. 447.

Citing also Horner v. Nicholson, 56 Mo. 220: Morgan v. Bowman 22 Mo 538.

Daegling v. Gilmore, 49 Il 248 [1868]; Lockwood. New York, 2 Hilt (N. Y.) 66;

*See Secs. 839-842, infra.

If

but see De Baker v. Southern Cal. Ry. Co. (Cal.), 39 Pac. Rep. 610; Lottman v. Barnett, 62 Mo. 159 Weguer v. Penn'a Ry. Co., 55 Pu. St 460.

6

380.

Niver v. Nash (Wash.), 35 Pac. Rep.

Camp v. Church Wardens, 7 La. Ann. 322; see also Faren v Sellers (La), 3 So. Rep 363 [1888].

8 Slater v. Mercereau. 64 N. Y. 138 [1876]; Newman v. Fowler, 8 Vr. (N. J 89. 9 Lancaster v. Conn. Mut. Life Ins. Co. (Mo.), 36 Alb. L. J. 176; see Ryder v. Kinsey (Minn.), 64 N. W. Rep. 94, veneer wall not anchored to main wall.

See Sec. 641, infra.