Failure to Build, or Abandonment of Construction


An architect or engineer may breach his contract for architectural services for valid reasons.[i] Even though the written contract for the architect’s services is uncertain and ambiguous as to compensation for the abandoned work, the architect is to receive his fee.[ii] Architects fee should be paid even if the parties anticipated the possibility that no construction contract would be made.[iii]

The responsibility resting on an architect is essentially the same as that which rests upon the lawyer to his client, or upon the physician to his patient.[iv] The undertaking of an architect implies that he possesses skill and ability, including taste, sufficient to enable him to perform the required services at least ordinarily and reasonably well; and that he will exercise and apply, in the given case, his skill and ability, his judgment and taste, reasonably and without neglect.[v] But the undertaking does not imply or warrant a satisfactory result.  There is no implied promise that miscalculations may not occur.

Although a contract provides for changes in the work required, this does not prevent recovery for changes based upon conditions which are unknown and materially different from anything contemplated by the parties when the contract was executed.[vi] In Herbert M. Baruch Corp. v. United States, 92 Ct. Cl. 571 (Ct. Cl. 1941), the court awarded architect damages for a change in soil conditions not contemplated in the construction contract and delays caused in failure to provide necessary construction details.

However a contractor could not recover when there is delay in approving changes in construction project, unless substantial harm is shown.[vii] In Irwin & Leighton v. United States, 106 Ct. Cl. 398 (Ct. Cl. 1946), the court held that a contractor could recover for its own damages resulting from delays in the construction of a university library for which the government was responsible, but it could not recover for a subcontractor that committed fraud against the government.

Further, when a building is not completed according to the plans and specification contemplated in the contract an architect can recover for the drawing of the plans.[viii]

A promise to pay out of a particular fund does not create an absolute liability, in the absence of facts or circumstances showing the contrary.  Accordingly, where a contract requires payment from a particular fund, it cannot be said that the debt is payable in a reasonable time where the source fails without the fault of the promisor.[ix] Thus in Vrla v. Western Mortg. Co., 263 Ore. 421 (Or. 1972), the court held that where it appeared from a contract that a stipulation for payment upon receipt of a specified fund was inserted merely to fix the time for performance, it was not to be regarded as a condition precedent.  Further, a failure to obtain financing will be a delay in making a  payment for services but should not be construed as a non-paymant of services rendered.

[i] Durand Associates, Inc. v. Guardian Inv. Co., 186 Neb. 349 (Neb. 1971)

[ii] Wick v. Murphy, 237 Minn. 447 (Minn. 1952)

[iii] In re Robby’s Pancake House, Inc., 21 B.R. 754, 759 (Bankr. E.D. Tenn. 1982)

[iv] SME Indus., Inc. v. Thompson,Ventulett,Stainback & Assocs., Inc., 2001 UT 54 (Utah 2001)

[v] id

[vi] Herbert M. Baruch Corp. v. United States, 92 Ct. Cl. 571 (Ct. Cl. 1941)

[vii] Great Lakes Constr. Co. v. United States, 95 Ct. Cl. 479 (Ct. Cl. 1942)

[viii] Michalowski v. Richter Spring Corp., 112 Ill. App. 2d 451 (Ill. App. Ct. 1st Dist. 1969)

[ix] Campisano v. Phillips, 547 P.2d 26 (Ariz. Ct. App. 1976)