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The subject of Architectural Jurisprudence is not a new one, as is generally supposed. A book was published on the subject as early as 1827 in England,* and the French law of Engineering and Architecture has been thoroughly digested in several volumes published in 1879. † Since then the growth and development of the industrial professions has made the need of such works more imperative, and it is a matter of surprise that the subject has not long since received the attention which it merits. This is doubtless due to the fact that to undertake such a task required a preparation and expe. rience not often acquired by a single person.
The need of a book on the subject of Engineering and Architectural Jurisprudence is more apparent since the engineer's and architect's field of practice has been extended. Their duties are no longer confined to designing and supervising the construction of works, but they have become counselors and advisers in the investigation and promotion of enterprises, and in the examination of experts and the rebuttal of their testimony. European engineers have long since enjoyed this practice, while the general employment of American engineers in such a capacity in this country is compara. tively recent. In preparing this book the author has hoped to enlarge this practice, and to create a better understanding between attorneys and engineers or architects. If the engineer understand, fairly well, the rights and liabilities of his employer and the contractor, and his own duties and obligations; if he appreciate the dangers and legal liability of his employer incident to construction work, and be fairly informed as to what is required in the conduct of a trial,-his services will without doubt be more valuable and more in demand.
Attorneys at law are not often familiar with the difficulties and dangers attending construction work, nor the methods employed. Even the terms employed are not often acquired by members of the legal profession, to say nothing of the technical knowledge required to skillfully conduct the exam. ination of experts in science and mechanics. To undertake such cases as arise in manufacture and construction, a lawyer must make a special study of the subject-matter of the case in hand, as best he may in the short time he has and under the pressure of other professional duties. He attempts in a few days or months to acquire what the engineer has devoted the best
of his life to accomplish, and with what success he knows as well as anybody. Lawyers are astute, and the showing that they frequently make in court before the jury is truly wonderful; but their technical knowledge is generally superficial, and the results are often what might be expected. They justify their course, however, on the ground that engineers are ignorant
* Elmes' Architectural Jurisprudence, 1827.
+ Nouvelle Jurisprudence et Traité Pratique sur la Responsabilité des Architectes, Ingénieurs. Experts, Arbitres et Entrepreneurs ; Honoraires des Architectes ; Devis Dé passés et Traveaux Supplémentaires, etc., par 0. Musseliu.
of the rules of evidence and court procedure, and that the suggestions they make are usually shortsighted and impracticable,, which cannot be denied. Lawyers do not enter into the study of specialties from choice, but from what they feel is a necessity. The reader has but to read the Chapter on expert testimony to appreciate the force of these remarks, and to feel that the author's attempt to render the services of experts of greater value to attorneys should not be in vain.
It must not be inferred that an engineer can, by a few weeks or months of study of law-books, undertake the practice of law or conduct his own cases in court, or even give advice in regard to matters of law. The author wishes expressly to disclaim any such purpose in the preparation of this work. The lay reader should keep constantly in mind that this work is not intended to enable him to go into court to defend an action at law ur to prosecute a claim, but is written primarily to assist him in avoiding trouble and litigation, and to aid him in protecting his employer's and his own rights when they are assailed. If a man's rights are usurped, he had best consult a man who makes some profession of knowing what his rights and liabilities are; if they involve his spiritual as well as his legal status, he will consult his pastor; and if there be questions involving engineering and architecture, he may reasonably be expected to consult his engineer or architect.
It is hoped that the book will fulfill another mission—that of guiding and strengthening the younger and inexperienced members of the indus. trial professions in a proper understanding and appreciation of business and business relations. Young men in the engineering and architectural professions often obtain in their technical-school training a contracted view of their professional duties and labors. They are likely to narrow their professional work to the ministerial duties of the drafting-room, the shop, or the field. Too many well trained and educated men remain in the shop or drafting-room, while less skillful men from the accounting-room and office, but with a good business experience, become superintendents, managers, and presidents of the concerns employing them; and it should be said that frequently the latter are more justly entitled to the place. The education of an engineer should fit him for a higher sphere than that of a delineator of lines. Supplemented with a good business experience, his training eminently fits him for the direction and superintendence of large works; and that is his proper field. If this book cultivates in young men a better appreciation of business relations and business principles, and a due sense of their duties, liabilities, and responsibilities, one of its chief missions is accomplished.
Another benefit that the author bas hoped to confer upon engineers and architects is to assist them in successfully undertaking contract work. There is no field for which they can better fit themselves and that is likely to prove more profitable. A good knowledge of the cost of work and materials, acquired by close observation while in charge of works, together
with the necessary qualification possessed by every engineer, the capacity to estimate design, and direct works, would seem to be all that one would require to undertake construction work and become a successful contractor and builder Yet hor few engineers or architects are to be found in the rank and file of contractors and builders. For this there must be reasons,-one of which is, that professional men, being ambitious, start at contracting earlier than their less-favored colleagues, and before they have had the requisite experience to foresee and guard against the dangers and liabilities attending construction, and they fail. It is believed that the experiences related in this work, together with the decisions given, will better qualify its readers, be they engineers, architects, or mechanics, to become prudent, judicious, and thrifty contractors and builders; and it is confidently ex pected that an engineer or architect who has supervised work, with some understanding of his own duties and the rights and liabilities of the owner and contractor, will be better able to undertake the duties of the latter.
To attorneys and counselors at law the author offers this, his first lawbook, with some apprehensions, and a full appreciation that it will be subject to criticism. The author believes that the book will be found a convenient and ready means of ascertaining the law as decided in the several thousand cases cited. In the small space of one volume it is impossible to go very exhaustively into all the subjects taken up in the book; but in the subjects bearing expressly upon the duties and liabilities of the engineer and architect, and the decisions rendered by the courts upon the special provisions common to construction contracts, the author confidently believes that he has compiled the largest and best collection of cases yet made. He regrets that he has not been able always to give the references to the official State reports, but many are given in the table of cases that are not cited in the foot-notes, and the reader is recommended to refer to the table of cases, if he has not ready access to the reports referred to in the foot-notes. It may save time in any case to verify the citation by ref. erence to the table of cases. The year and State in which the case was decided is usually given, which will assist in finding the cases in any report containing them. The number of citations is large, there being more than five thousand, which are collected in a table; and thousands of other cases are indirectly referred to in text-books, treatises on law, and in the first edition of the American and English Encyclopædia of Law. In referring to standard works of very large circulation, like the latter, the author has not deemed it advisable nor necessary to add to those already collected, but has been content to refer the reader to such standard books and to the cases there collected.
Though the number of cases is very large as it stands, it contains only about one third of the number collected in the preparation of the book. In the original plan of the work the author misjudged the number and extent of the subjects fairly to be treated under the title adopted, and has had to
omit one whole Part and to abbreviate several Chapters for which he had collected materials.
The Part in question, on “Surveys and Surveyors; or, Field Operations and The Law of Boundaries,” will be the subject of a later volume; while the Chapters mentioned are those upon the subjects of Mechanics' Liens, Injunctions, Strikes and Boycotts, Assessments, and other subjects which, though of much interest to the reader, are too cumbersome to include in any one volume The author has had to be content to briefly mention these subjects, and to refer his readers to excellent books specially treating them and already published.
Scrutinizing and discriminating as lawyers are, the author expects that some will take exception to the plain and unqualified statements of the law frequently made. A plain statement of the law or of a party's rights in any case is well-nigh impossible, because they are subject to so many technical considerations, conditions, and circumstances. In perusing the different parts of the book statements will be found which are seemingly contradictory, but it is submitted that frequently they will be reconciled by reading to the end The author would warn the reader that he must not read a line nor a sentence nor a page, and then draw conclusions, which the rest of the text on the same subject may disclose to be erroneous. If he read, he should read all that has been written on any subject, including the sections referred to at the bottom of the pages. The author has made plain statements of the law under the circumstances described and under the conditions which usually exist (if not described), in the belief that it will meet the approval of the reader better than it he surrounded every statement with a confusion of facts, refinements, and technicalities that exist perhaps not once in a thousand cases. So far as the courts have made exceptions, the author has endeavored to present them in as brief a space as possible. Lawyers rarely make unqualified statements of the law without knowing all the circumstances of the case, and then often they find it necessary or convenient to qualify them with “ifs" or conditions, so that their clients get little idea of their legal rights and liabilities. Especially is this true of conscientious lawyers and profound scholars, but it is not what the average business man, engineer, or contractor wants. What is given in these pages is confidently believed to be the practical application of the law to the case presented.
The contract stipulations given and discussed have been chosen from a collection of several thousand specifications and contracts made by the anthor, and which have been in use by the governments, principal cities, and largest corporations of the United States, Canada, England, and Scotland The contract clauses have been selected for the double purpose of furnishing matter for discussion, and as examples to be employed in draft ing construction contracts In many instances they are more full and comprehensive than would be recommended for general use. but short forms have also been given so that the draftsman may have a selection. The full phraseology has been given to furnish the reader the variety of language in which the provisions have been expressed. These stipulations have been indented and made solid, so that they may be distinguished readily.
Many of the contract clauses adopted for discussion in the book have been divided into parts so that the condition might be separately discussed, and such forms of a contract are to be preferred to those in which several conditions or covenants are mixed up in one sentence or paragraph, even at the expense of brevity. When stated separately, it removes all doubt that the stipulation was considered.
The author has refrained from giving a full contract form for general use in construction work, and he would warn his readers of the mischief that often results from the adoption of such forms for special cases. The adoption of a single clause, without the careful consideration that the questions presented deserve, is discouraged. Much trouble and litigation are the result of adopting loosely or carelessly prepared contracts for construction work.
The author wishes to express his heartfelt thanks to the owners and offi. cers of the libraries to which he has had access in the preparation of this work for the many courtesies which he has received, and especially to the Harvard Law School Library of Cambridge, the Social Law Library and the Massachusetts State Library of Boston, the Law Institute Library of New York City, the Library of the Court of Appeals at Syracuse, and the private Library of Justice D. L. Follett of Norwich, N. Y. Without the free use which the author has enjoyed of these large libraries the completion of the book in its present state could not have been accomplished.
The author has necessarily made a legitimate use of other works, and he has made frequent reference to text-books and other treatises; but special acknowledgment is due to the several works upon Railroad Law by Redfield, Pierce, Wood, Hodges, Godefroi and Shortt, and to Lacey's Digest ; to Phillips' Mechanics' Liens; to the respective works of Story, Evans, and Meechem on Agency; to Meechem on Public Officers; to Lawson's works on Expert Evidence and Custom and Usage; to Dillon's Municipal Corporations; to Emden on Building and Building Leases; and to the American and English Encyclopædia of Law, which is frequently referred to for collections of cases.
These works are to be found in almost every library, and the author has had to refer the reader to them for more detailed infor. mation of some subjects than could possibly be given here.
To his many friends in the engineering professions and numerous industrial vocations who encouraged bim in his earlier efforts to undertake and complete such a work the author sends greetings, and earnestly hopes that the book may prove to be all that they had hoped for and anticipated. The task proved more arduous than was anticipated. The words Architect, Engineer, Contractor, and Builder are rarely found in the indices of law.