The morning call., 1890-08-10
NO NEGLIGENCE.
A Suit Interesting to COntrac.
tors and Builders.

The suit Of W. Winterhalter against P.
Fl. Bielenberg, to recover 1929 SO for archi-
tect's services was decided yesterday by
Justice Reimer in favor of the plaintiff. 1t
was defended upon the ground that the
plaintiff had been employed to prepare plans
and specifications for the erection of GER
tain building. and to let its construction to
the lowest bidder, and to attend to the
making and filing Of a contract as provided
by law, and to superintend the construction
and to advise the defendant in regard to all
matters connected Herewith, for all of
which contract was entered into between
the owner and one George w. Farnum to
construct the building in question for $1,000,
and $1,000 bond given.
The contract price, as is usual, was pay
able in inStallments and the original con-
tract was filed in the Recorders Office. The
contractor was paid $500 before the first
installment became due, and skipped the
town." leaving his laborers and material
men unpaid, and the building in an incom-
pleted state. a new contract for its COM
pletion was entered into with others with
the result that the owner became liable for
S2164 more than the contract price.
This loss the owner cannot recover as
against the bondsmen of the first contractor,
under decision Of the Supreme court, be-
cause the plans and specifications, which
were referred to in it and formed part OF
it. were not filed with the contract, and the
latter thereby becomes void so for as sub
contractors as well as the suretles on the
contractors bond are concerned.
1t is said to be the practice among archi-
tects to file the original building contracts
without the plans and specifications and
consequently nearly all of them are void,
and the filing of them in the Recorders
Office does not protect owners from liens
The contract being void the Suretles ON the
contractors bond escape also from liza
biity. Usually only in such cases in which
the owner has employed an attorney has
the filing Of builders contracts been done
in compliance with the statute. which has
been amended by almost every Legislature
since it was enacted.
A recent amendment provided that in
stead of the contract memorandum there
of may be filed for record and before the
work is commenced, setting forth the
names of all the parties to the contract,
description of the property to be affected
general character of the work to be done,
the total amount to be paid hereunder, and
the amounts of all partial payments togeth-
er with the times when such payments shall
be due and payable" 1t appears that when
such memorandum of the contract is filed
it is not necessary to file the plans and speci-
fications, but they must be filed if the orlgi-
nal contract is.
In the suit before Justice Reimer it was
attempted to charge the architect with neg
ligence. and to Offset against his claim for
services the owners loss, which was the
direct result of not filing the plans and
specifications with the contract. But the
Court held that if an architect gave an
opinion Or advice in matter of law he was
not acting within the scope of his employ
ment, and that the plaintiff was not charge
able with nepliPAnce.