This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
The power of the architect or engineer to bind the employer, depends upon the power conferred upon him by such employer, either in the building contract with the contractor, or in the contract of employment of such architect or engineer.1 Outside of such authority, the architect or engineer has not, by virtue of his position, general power to pass upon questions of fact and thereby to conclude his employer,2 or to modify terms in the contract already entered into.3 In the absence of a specific grant of authority, the architect has no power to change plans,4 or to waive a provision for liquidated damages,5 although performance of the contract must be made to his satisfaction. If the architect or engineer demands material of a more expensive kind than that stipulated for by the contract, and arbitrarily refuses the use of material which conforms to the contract, it has been held that the contractor may comply with such demands and may recover the difference in the cost of such material from the owner.6
21 White v. Abbott, 18S Mass. 99, 74 X. E. 305.
22 Wallace v. Oregon Engineering & Construction Co., 90 Or. 31, 174 Pac. 156.
1 Guthrie v. Carpenter, 162 Ind. 417, 70 X. E. 486; Seaside v. Bandies, - Or. -, 180 Pac. 319; Foeller v. Heintz, 137 Wis. 169, 118 N. W. 543.
2 Mercantile Trust Co. v. Hensey, 205 U. S. 298, 51 L. ed. 811 [affirming, Mercantile Trust Co. v. Hensey, 27 D. C. App. 2101; Sterling v. Hurd, 44 Colo. 436, 98 Pac. 174; Cannon v. Hunt, 113 Ga. 501, 38 S. E. 983.
3 Arkansas. Boston Store v. Schleu-ter, 88 Ark. 213, 114 S. W. 242.
District of Columbia. Fontano v. Bobbins, 22 D. C. App. 253.
Massachusetts. Mcintosh v. Hastings, 156 Mass. 344, 31 X. E. 288; Lev-erone v. Arancio, 179 Mass. 439, 61 N. E. 45.
West Virginia. Charleston Lumber Co. v. Friedman, 64 W. Va. 151, 61 S. E. 815.
Wisconsin. Foeller v. Heintz, 137 Wis. 169, 118 N. W. 543.
4 Foeller v. Heintz, 137 Wis. 169, US N. W. 543.
He may change the plans if so authorized by his principal. Guthrie v. Carpenter, 162 Ind. 417, 70 X. E. 486.
5 Charleston Lumber Co. v. Friedman, 64 W. Va. 151, 61 S. E 815
6 Camp v. Neufelder, 49 Wash. 426, 95 Pac. 640.
The adversary party is not precluded by the action of the architect any further than he has agreed in advance. Thus a provision requiring payment under the contract to be upon certificate, but making no provision for extras, does not prevent the contractor from recovering for extras.7 Under a provision in a contract requiring a certain specified make of article or its equivalent, the architect has no power to refuse arbitrarily to permit the contractor to use any other material than such designated make.8
A provision which makes the architect or the engineer the judge of the performance of the contract, assumes that he will act in accordance with his personal knowledge, expert and otherwise;9 and accordingly it is not necessary that he should give notice or hearing before he decides one of the questions submitted to him.10