the owner has employed competent architects and superintendents to erect a structure, he is not liable to a workman for injuries from an accident during its erection if the accident is not due to inherent weakness of the materials furnished,' or to violation of building laws with knowledge thereof."

245. Liability of the State, County, or Municipal Corporations for the Adoption of Insufficient Plans and Specifications.-The question of liability to third persons for injuries resulting from defective plans is one that arises. most frequently in city administration. Sewers, drains, and culverts prove inadequate, reservoirs burst, and bridges fail, and not infrequently because the size or capacity is too small or the plan is defective.

3

Of public organizations, such as cities, towns, counties, and the state, the law requires that reasonable care, judgment, and skill shall be exercised in the selection of a plan and in the construction of works according to that plan.

246. Public Officers are Required to Secure the Services of Engineers and Architects on Questions of Design and Construction. It requires that the council, select men, board of supervisors, or owner shall exercise reasonable care in securing the services of skilled engineers and architects to prepare plans and specifications for works, and that they shall use ordinary care in seeing to it that such engineer or architect employs his skill in the performance of the duties required of him. It is negligence for such officers of a city to act upon their own judgment in matters that require the knowledge and skill of an expert, no matter how much they deliberate; and it has been held that such questions as the size of a sewer' or a culvert," or the strength of a bridge,' the plan of a sidewalk," and similar questions in engineering and architecture, were questions that required the services of an expert in those professions. When a skillful engineer has been selected, and he, acting in good faith, adopts a plan that proves insufficient for the purposes intended, then no negligence attaches to the city, town, or county, although there may have been an oversight or an error in judgment, and it is not liable for injuries that result."

Walton v. Bryn Mawr H. Co. (Pa.), 28 Atl. Rep. 438; but see Campbell v. Lunsford (Ala.), 3 So. Rep. 522 [1888], contra, where the owner was held liable for injuries resulting from the negligent performance of the work, although the work was under the direction and supervision of an architect.

Pitcher . Lennon (Sup.), 38 N. Y. Supp. 1007; and see Bradfield v. Trustees, 30 Geo. 1.

Terre Haute r. Hudnut, 13 N. E Rep. 686; Van Pelt & Davenport, 42 Iowa 308.

4 Ferguson v. Davis Co., 57 Iowa 601 [1881]

5 Giles . Diamond State Iron Co. (Del.), 8 Atl. Rep. 368 [1887].

Ferguson v. Davis Co., supra,

10 Urquhart v. Ogdensburg, 91 N. Y. 67 [1883]

་

Terre Haute v. Hudnut, supra; Van Pelt v. Davenport, 42 Iowa 308 [1875]; Ferguson v. Divis Co., 57 Io a 601 [1881]; Diamond Match Co v. New Haven (Conn.). 13 Atl. Rep. 409 [1888]; see also Mansfield C. & C Co v. McEnery. 91 Pa. St. 185 [1879]; H. & T. C. Rv. Co. e Fowler, 56 Tex. 452 [18821, and cases cited; many cases collected 15 Amer. & Eng Ency.

A city, town, or county must act through the agency of others, and to hold it responsible for the consequences of the mistakes of a competent. employee after the honest exercise of his best judgment "would require it at its peril to secure what is impossible, absolute perfection in its servants and agents." What is required of the city is that it shall not be negligent in the exercise of reasonable care and skill in the exercise of its duties, and negligence has been defined as the failure to exercise ordinary care. Ordinary care requires that a person or persons who represent an organization should not, unless proficient, undertake those things which require a special knowledge and training. They cannot carelessly and negligently adopt an insufficient plan of a structure and escape liability for damages resulting from the insufficiency of such plan. To relieve the county, town, or city

from such liability it must employ a competent engineer to prepare a plan of the works to be undertaken; and if he has recommended a plan as sufficient for the purpose, and the authorities vested with the power of selection adopt the same plan under the belief that it is strong and safe for the purposes for which it was designed, then they have exercised proper care and skill with reference to the work, and the city, town, or county is not liable. for damages resulting from the use of the plan.'

247. Selection of Plans for Public Work Sometimes Held a Judicial Act. -There are cases to the effect that the adoption and approval of the plan. of a public work is a judicial act for which the city is not responsible, and that negligence is not to be predicated upon the plan itself. The bulk of the authority is to the effect that it is negligence to adopt a plan of a public improvement without taking competent professional advice with regard to it. These latter decisions are based upon the ground that an undertaking to exercise judgment without skill in a matter which require skill, is not a mere error of judgment, but it is negligence, which is sound sense.

Law 1149; Magarity v. Wilmington (Del ), 5 Houston 530 [1879].

1 Van Pelt v. Davenport, 42 Iowa 308. Ferguson . Davis Co., 57 Iowa 601 [1881]

Ferguson . Davis, supra; Diamond Match Co. New Haven (Conn.), 13 Atl. Rep. 409 [1888]: De Baker v. Southern Cal Ry. Co. (Cal.), 39 Pac. Rep. 610; and see Railroad Co. v. Halloran, 53 Tex. 46; 2 Thompson on Negligence 985, 1008; Pierce on Railroads 370 and 379, citing numerous authorities in notes; Shearman & Redfield on Neg., § 445.

Toolan Lansing. 37 Mich. 152, 38 Mich. 315; Urquhari v. Ogdensburg, 91 N. Y.. 67 [1883]; Collins v. Philadelphia, 93 Pa. St. 272; Detroit v. Beekman, 34 Mich. 125 [1876]; Johuson v. Dist. of Col. (U. S. Sup. Ct.) 22 Reptr. 7 [1886]; Foster St. Louis, 71 Mo. 157 [1879]. These cases maintain tht the elections and adoption of a general plan or system of

works is the exercise of judgment and discretion which is not reviewable by a court, and that the city is not liable for damages arising from a defective plan adopted, but only for damages resulting from negligent execution of work in compliance with such plan. The construction and repair of public works are simply ministerial duties, for the negligent or improper performance of which the city is liable.

515 Amer. & Eng. Ency. Law 1149, where many cases are cited. A surveyor who is not a civil engineer is not competen to recommend a plan for a culvert, Rochester W. L Co. v. Rochester, 3 N. Y. 463 [1850]; but see Mills v. Brooklyn, 32 N. Y.499; and Johnston & Dist. of Colum. (U. S Sup. Ct.), 22 Reptr. 7 [1886]; which cases criticise Rochester White Ld. Co. v. Rochester, 3 N. Y. 463.

686.

Terre Haute v. Hudnut, 13 N. E. Rep.

248. Liability of City, Town, County, or State for want of Care or Skill of Public Officer.-The city, town, county, or state are not responsible for the mistake or the want of care or skill of the city, town, or county surveyor, "whether appointed and removable by it or elected by the people, when he performs duties (though the performance thereof may be regulated by ordinance) for or between individuals, as, for example, fixing the boundary between their lots." 1*

A city has been held liable for injuries caused by the fall of a bridge, owing to the negligence and want of skill of the city engineer.'

249. Provision that Engineer Shall Have the Custody of Plans.

Clause: "It is hereby mutually agreed that until the contract shall have been completely performed, the architect shall have the custody of the plans, elevations, sections, specifications, and schedule of prices, and of this contract, on behalf of all parties concerned; and when the contract shall have been performed he shall deliver the same to the owner or company."

250. Provision that Specifications and Drawings Shall be Kept at Works.

Clause: "The engineer or architect for the time being shall furnish copies of the specifications and contract drawings for the use of the contractor, and the detail drawings when provided by the architect shall be kept on the works, where the contractor may copy or refer to them, and they shall not be removed therefrom.

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Complete copies of the drawings and specifications, signed by the architect, shall be furnished by him to the contractor for his own use, and the same or copies thereof shall be kept constantly on the works by the contractor, by which instructions can be given by the architect." 251. Provision that Contractor Shall Have Custody of Plans.

Clause: "The contractors shall preserve and keep all plans, drawings, writings, papers, specifications, and documents which may have been delivered to them, or for their use; and the engineer and his assistants and the clerk of works shall have full access thereto, at all times, and for all purposes, and the same shall be kept at or near the site of the works, and the said contractor shall return said plans, drawings, etc., to the custody of the engineer at the time of the delivery up of the works to the owner or city, and before they receive the installments payable thereon."

The latter part of this stipulation is unsatisfactory to a contractor, as it takes evidence away from contractor, unless he goes to the expense of making copies of all plans and drawings. Nowadays specification and plans are usually printed or duplicated by photographic processes, so that contractor is provided with a copy which he is permitted to keep.

12 Dillon's Munic. Corp'us. (3 ed ), § 978, and cases cited; Aldcorn . Philadelphia, 44 Pa. St. 348 [1863]; see also McCarty v. Bauer, 3 Kans. 237 [1865].

and see Sayler v. Harrisburg. 87 Pa. St. 216 [1878]: 2 Dillon's Munic. Corp'ns (3d_ed.),

978 [1881]; Rochester W. Ld. Co v. Rochester, 3 Comst. (N. Y.) 463 [1850]; Kobs v. Minneapolis, 22 Minn. 159 [1875]. * See also Secs. 36, 179, supra, und 850-859, infra.

Dayton v. Pease, 4 Ohio St. 80 [1854];

252. Property Rights in Plans as between Engineer or Architect and Owner.*

253. Provision that Work Shall be Done in a Workmanlike Manner. †

Clause: "The parties hereby further agree that all materials used throughout the herein-described works shall be the best of their respective kinds, and new and unused when put into the work; and that the whole shall be done throughout in the best, most workmanlike, and substantial manner, and everything done and furnished necessary to complete the work according to the particulars contained in or implied by the specifications, plans, and bill of quantities herein referred to, and according to such other additional drawings, explanations, and directions as the Engineer may give or approve."

254. Another Clause:

"The works under this contract, and every addition, alteration, or deviation directed to be executed under this contract, or that may be necessary or proper to the complete and perfect performance thereof, shall be executed by the contractors in the best and most substantial and workmanlike manner, with materials of the best and most approved quality of their respective kinds, according to the specification, draw. ings, and the bill of quantities herein referred to, or to such other additional particulars, explanations, and drawings as may be given or approved by the engineer, and to his full and entire satisfaction, according to the instructions and directions from time to time given him.” 255. Another Clause:

"Every part of the work shall be executed as directed by the specifications, in the most sound, workmanlike, and substantial manner, and all materials used in the construction of the building shall be new and the best of their respective kinds, except where otherwise distinctly directed or allowed by the specifications."

256. An Undertaking to Construct a Piece of Works Is an Undertaking to Do it Well and in a Workmanlike Manner.-These clauses are frequently inserted in a construction contract, their purpose being to avoid any question as to the quality of the work required by the terms of the contract, or any claims on the part of the contractor that it was mutually understood that the work and materials were to be of an inferior class. In the absence of any express agreement as to the manner of constructing a thing the law requires it to be made or built in a workmanlike manner with good materials, and that it shall be suitable for the purpose intended.'

If, however, the contractor follow the directions of the owner in making for him an experimental article, from a pattern furnished, he cannot be denied payment because the article is not as fit for the uses contemplated as the pattern furnished.'

'Gill Man'fg Co. v. Hurd, 18 Fed. Rep. 673. [1883]: Lucas v. Goodwin, 3 Bing. N. Cas. 737; Pearce v. Tucker, 3 F. & F.

136; Wade v Haycock, 25 Pa. St. 382; Smith & Nelson v. Bristol, 33 Iowa 24. Fish v. Chicago Stamping Co., 58 Ill.

* See Sec. 815, infra, in regard to ownership of plans, drawings, and designs, and p'ans consigned to common carrier which were delayed or lost; and Secs. 816–822, infra, in regard to incorporeal property rights in original designs.

+ See Secs. 340 and 835, infra.

Any workman who contracts to do a piece of work thereby impliedly warrants that he is reasonably skillful and will bring sufficient skill and dexterity to its performance to complete it in a just and workmanlike manner. Anybody who undertakes to construct a piece of work impliedly warrants that he is reasonably skillful in his profession, trade, or calling, and that the materials he employs shall be suitable for the purposes for which they are used. A builder may be held liable for the construction of a chimney that is not capable of carrying off the smoke for which it was designed. The fact that the price to be paid is grossly inadequate does not change the rule, nor does the fact that the owner has seen the work done and has benefited thereby enable the contractor to recover the price agreed upon.

The rule does not seem to be applied so strictly when one contracts to furnish materials, for it has been held that where the owner had a chance, before making a purchase, to inspect the lumber bought, that there was no implied warranty on plaintiff's part that it was merchantable for the purpose intended for it by defendant.**

A mechanic who undertakes to do a job in a workmanlike manner, as well as any other mechanic could do, cannot recover for his labor if the thing when completed does not answer the end for which it was designed.'

257. An Agreement to Perform Work in a Workmanlike Manner Must be Faithfully Executed or No Recovery Can be Had.-If a contractor has expressly agreed to execute a job [construction of box-cars] in a plain and workmanlike manner, and to the satisfaction of the engineer, or in a manner to be determined by the engineer, in order to recover for what he has done he is bound to show by such person appointed by the parties for that purpose, that so far as he has progressed he has executed the work in a plain and workmanlike manner as required.*

In an action to recover the price of work and labor to be done in a faithful and workmanlike manner, the owner may show that it was not so done App. 663; City of Elgin v. Shoenberger,

59 Ill. App. 384.

1 Leflore v. Justice, 9 Miss. 381 [1843]; semble Dale v. See, 51 N. J. Law 378 [1889]; Somerby v. Tappan, 1 Wright (Ohio) 570 [1834]: Harmer v. Cornelius, 5 C. B. (N. S.) 236 [1858].

2 Springfield C. A. v. Smith, 32 Ill. 252 [1863]: accord Johnson v. Freeman (Pa.), 28 Atl. Rep 780; Van Hovenburgh v. Lindsey, 1 Alb. L. J. 122

3 Somerby v. Tappan, supra. A drain, Hattine. Chase, 88 Me. 237; see also Fuller 2. Brown (N. H.). 34 Atl. Rep. 463.

4 Smith v. Bristol, 33 Iowa 24; Willams v. Keech, 4 Hill (N. Y.) 168.

5 Smith v. Bristol, supra.

T. B. Scott L. Co. v Hafner-Lothman Mfg. Co. (Wis.), 65 N. W. Rep. 513; semble Omaha C. C. & L. Co. v. Fay (Neb.), 55 N. W. Rep. 211; and see Wis. Red Brick Co. v. Hood (Minn.), 69 N. W. Rep. 1091; Collins Money, 4 Miss. 11; McLane v De Leyer, 56 N. Y. 619.

Leflore v. Justice, supra; Wade v Hay cock, 25 Pa. St. 382; Springfield C. A. v. Smith, 32 Ill. 252 [1863]: I. B & W. Ry. Co v. Adamson, 114 Ind. 282 [1887]: Kellog Bridge Co. v. Hamilton, 110 U. S. 108; Florida R. Co. v Smith, 21 Wall (U. S.) 255; and see Hunt v. Penna. R. Co., 51 Pa. St. 475.

8 Ennis v. O'Connor (Md.), 3 H. & J., 163 [1810].

* See Sec. 277a, infra.