Baltimore Cemetery Co. v. Coburn

Tuck, J., delivered the opinion of this court. The parties entered into a written agreement for the erection, by the appellee for the appellant, of a gateway, according to a specified plan. The contract contained this clause: “It is hereby mutually agreed that should any alteration be contemplated from the present design, it may be done, provided the parties beforehand agree upon the price, and endorse it upon the contract, and unless such agreement be also entered, it is to be taken to be an agreement to make the alteration without any change in price of the original contract.” Some changes were made in the progress of the work, about which there is no controversy. The appellee sues to recover compensation for two windows, placed in the gateway by direction of the architect, which it is said became necessary to its symmetry and beauty, in consequence of the two chimneys having been placed in a position different from that contemplated by the original plan.

It is said, on the part of the appellee, that these windows were additional work, not part of the original design, and, therefore, not such an alteration as was necessary to be ²⁰⁷ endorsed on the contract. In this we do not agree. Why should the change of place of the chimneys be within the agreement, and not the change as to the windows ? It makes no difference whether the number of the windows was increased or not.

In one sense these two new windows would be additional work, but might they not require an alteration in the plan ? If the original design had been completed according to the contract, and other work done after the contract had been discharged, it would present a different question. This is not like the cases cited, in which the parties charged acquiesced in, or accepted the work when finished. It does not appear that the company ever acquiesced in this change.

Indeed if the order had been given by it for the work, would it not have been within the clause we have given from the contract?' It is impossible to conceive the use for inserting any such provision, if it is to have no effect in a case like the present. Owners are very much in the power of builders and architects. Changes, apparently unimportant, are often made, the first knowledge of which comes to the owner in the' shape of an additional charge for extra,work. It may have been to prevent this, and the controversy that often arises-from verbal arrangements suppletory to written agreements, that the parties had this cautious provision inserted.

It was a clause for the benefit of both, especially for that of the owner. The plaintiff must have known that he could not make the alteration and charge for it, unless the assent of the parties was endorsed on the contract. The stipulation pro-' vides, not only that the price shall be agreed upon beforehand, and endorsed, but also, that if this is not'done; it shall be taken as an agreement to make the alteration without any change in the price from the original contract. If the plaintiff, relying on the assurance of the architect, chose to perforin this work without placing it within the protection afforded to the parties by an endorsement on the contract, he must bear the consequences.

There is nothing to show the assent of the defendants, or ²⁰⁸ their acquiescence in the alteration; on the contrary, the first we hear of them in reference to it, is their refusal to pay the extra charge. Even if they had had knowledge tending to