Davis v. Bush & Lane Piano Co. , 124 Or. 585 ( 1928 )

The complaint alleges that the plaintiff has duly performed, on his part, all the conditions of both of said contracts. This was denied by the answer. Upon this issue plaintiff was bound to establish upon the trial the facts showing such performance upon his part. There was, however, sufficient evidence tending to show a complete performance by plaintiff of all of the conditions of both of said contracts and, therefore, upon this issue defendant is concluded by the verdict. This also disposes of the contention that the court erred in refusing to sustain defendant's motions for a nonsuit and for a directed verdict.

Many of the assignments of error are based upon the refusal of the court to give certain instructions requested by defendant in respect to matters which were not in issue under the pleadings and which did not concern any question upon which the jury should have been called upon to pass, and hence no consideration of such assignments will be given.

One of the instructions requested was to the effect that the powers and authority of the architect were limited by the terms of the agreement under which the work was done. The court properly refused to give that instruction. The contract under which the work was done and by the terms of which defendant contends that the powers and authority of the architect are to be measured was not entered into by the architect. He was not a party to that contract. It contained no provision in respect to his powers and authority, nor was it intended in any way to limit or define them. It contained no notice to plaintiff of what powers or authority the architect possessed. Whatever his powers and authority were they were created and defined by the contract between the defendant and the architect and to that contract plaintiff was not a party and, so far as the evidence shows, he had no knowledge of its terms.

The contract between plaintiff and defendant merely recited that "the said documents (referring to the plans and specifications) have been prepared by Ronald H. Hopkins, therein and hereinafter called the architect," and that the contractor, referring to the plaintiff, "covenants with the owner (referring to the defendant) to furnish his best skill and judgment and to co-operate with the architect in forwarding the interests of the owner." This alone is the only reference contained in the contract which in terms provided that "the said drawings and specifications, together with this agreement, constitute a contract."

As a general rule the architect is the agent of his employer for the purpose of making drawings and superintending the works. "His authority in this behalf arises from his appointment in the capacity of architect, for the functions of an architect are well known, but limits of his authority must be ascertained in each case from the specific contract under which he is employed." Hudson on Building Contracts (5 ed.), § 2. While it is true that plaintiff alleged that the work was done under the supervision of the architect and this allegation was denied in the answer, and there was some dispute in the evidence as to whether the architect did supervise the work, the preponderance of the evidence clearly showed not only that the architect did supervise the work but also that such supervision was known to the defendant, was acquiesced in and consented to by the officers of the defendant. This question, therefore, it being one of fact and not of law, was settled by the verdict.

The court instructed the jury as follows:

"* * that the defendant is bound by the acts of his agent, within the apparent authority conferred upon such agent. The liability of a principal is not limited to such acts of the agent as are expressly authorized or necessarily implied from express authority. All such acts of the agent as are within the apparent scope of authority conferred on him are also binding upon the principal, apparent authority being that which, though not actually granted, the principals knowingly permit the agent to exercise, or which he holds him, the agent, out to possess."

The giving of this instruction is also assigned as error. The evidence clearly showed that, while the plaintiff was engaged in carrying on the work, the architect supervised it; that the defendant, through its agents, was present at times while the work was being performed and knew that the architect was supervising the work. With such knowledge upon its part, it permitted him to do so without making any objection or calling the attention of the plaintiff to any alleged lack of authority upon the part of the architect. By these acts of defendant's agents, defendant held out to plaintiff that it had clothed the architect as its agent with apparent authority to supervise the work and under such circumstances the instruction given was proper.

Upon completion of the work, the architect issued and delivered to the plaintiff a certificate, reciting that the contracts had been performed and stating the amount payable to plaintiff thereunder. This certificate was introduced in evidence over the objection and exception of defendant. Its admission in evidence is now assigned as error. There was nothing in the evidence to show that the architect did not have authority to issue this certificate. On the contrary, the evidence showed that he did have such authority. The court later instructed the jury to the effect that the jury was not to consider the certificate as evidence of the amount due and that the jury was to find the amount due from other evidence in the case. We think that, under the evidence offered in the case, the court's instructions went too far in favor of the defendant, but as to this defendant cannot complain.

We have examined into the other assignments of error and are unable to find any reversible error in respect to any of them. The judgment appealed from is, therefore, affirmed. AFFIRMED.

COSHOW, McBRIDE and ROSSMAN, JJ., concur.