
    ALFRED B. MULLETT v. THE UNITED STATES.
    [No. 16622.
    Decided June 2, 1890.]
    
      On the Proofs.
    
    The Supervising Architect of the Treasury at the request of the Secretary of State and other officers constituting a commission to erect the State, War, and Navy Department Building prepares plans and superintends the construction. In 1875 he resigns his office of Supervising Architect, and declines to act further as superintendent.
    I. If an implied contract existed between the Supervising Architect of the Treasury and the Government for his services as architect of the new State, War, and Navy Department Building, his right of action accrued not later than when he severed his connection with the work, and the statute of limitations tiien began to run.
    
      II. The rules of the Institute of Architects regulating the charge of architects are made for those in private life who have running expenses, and are subject to competition, and liable to have their plans declined. They do not extend to an officer of the Government running no financial risk and subjected to no expense.
    
      The Reporters’ statement of the case:
    The following are the facts of the case as found by the court:
    I. The commission authorized by the resolution of December 14, 18G9, and of which plaintiff, then Supervising Architect of the Treasury, was a member, decided to erect a building for the Department of State upon McPherson Square, in the city of Washington. It was suggested that plaintiff prepare plans for the building proposed, but he declined, and tentative plans were prepared by another. These plans were not satisfactory. Plaintiff thereupon, at the suggestion of the Assistant Secre-tray of State, prepared tentative plans for the building, then intended to be erected upon McPherson Square for the Department of State only.
    Later it was decided to erect at the corner of Pennsylvania avenue and Seventeenth street, Washington, a building to accommodate the Departments of State, War, and Navy, and the McPherson Square site for the Department of State was abandoned. This course was authorized by the act of March 3,1871, and prior to the passage of this act plaintiff was requested by the Secretary of State to extend his former design so it would cover the larger building then contemplated. This he did.
    II. After the passage of the Aet of March 3, 1871 (Stat. L., vol. 16, p. 494), the commissioners therein named selected the plaintiff as architect to design and prepare the drawings for the building contemplated by that act. Plaintiff designed these drawings, superintended their preparation, made and suggested changes therein, and the drawings so designed by him were accepted and approved by the commissioners designated in the said act, and the building now occupied by the Departments of State, of War, and of the Navy was built in substantial accordance with the drawings. Plaintiff superintended the construction of the southern wing of this building, now occupied by the Department of State, and the east wing from the beginning until January 1, 1875, at which date the expen ditures upon tlie building amounted to $'1,876,096.47. The total cost of the entire building was $10,030,028.99.
    III. Plaintiff during all the time covered by the service here-inbefore described was Supervising Architect of the Treasury Department; the labor performed by him as to the new building was done by permission of the Secretary of the Treasury, without sacrifice of time properly to be devoted to the duties of the Supervising Architect and without promise of compensation except as hereinafter shown. Plaintiff was not at personal expense or outlay in the preparation of plans or otherwise in connection with the new building, but he gave to it his individual genius and individual labor, and this without injury to the interests committed to his charge as Supervising Architect.
    IY. Plaintiff resigned his office as Supervising Architect of the Treasury. This resignation took effect January 1, 1875. He was requested by the Secretary of State to remain in charge of the new building at a salary of $5,000 a year, giving-to it his entire time and attention. This he declined.
    Y. Prior to the passage of the act authorizing the construction of the building plaintiff was told at a meeting where were present the Secretary of State and representatives of the Committees on Public Buildings and Grounds of the Senate and House of Representatives that if he would make the plans they had no doubt that his services would be taken into consideration by Congress in making the necessary appropriations for-the erection of the building, and that if his plans were accepted and he should superintend the construction of the building he would be properly compensated.
    YI. The building for the Departments of State, War, and of the Havy was begun June 21, 187.1, and finished in 1888. It does not appear that prior to the commencement of this action plaintiff made a demand for compensation as architect or-superintendent of said building, except in an application to Congress.
    YII. The usual and customary schedule of charges of the professional practice of architects, as prescribed by the American Institute of Architects (chartered under the laws of the State of íTew York), the Western Association of Architects, and other architectural societies, including the District of Columbia, and by profession generally, fixes the rates of compensation and rules governing the same as follows:
    “For professional services (including supervision), 5 per cent, upon the cost of the work.
    “The charge for partial service is as follows :
    Per cent,
    Preliminary studies.-.. 1
    Preliminary studies, general drawings and specifications. 34
    Preliminary studies, gone al drawings, specifications, and details. 34
    “ For works that cost less than $10,000, or for monuments and decorative work and designs for furniture, a special rate in excess of above.
    “ An additional charge to be made for alterations or additions in contracts or plans, which will be valued in proportion to the additional time and service employed.
    “Necessary traveling expenses to be paid by the client.
    “ The architect’s payments are successively due as his work is completed in the order of the above classifications.
    “ Until an actual estimate is received the charges are based upon the proposed cost of the works, and the payments are received as installments of the entire fee, which is based upon the actual cost.
    “ These are the rates and rules established by the custom and usage of the profession, and are never deviated from by architects in good standing, except under exceptional circumstances, and then only by a special and express contract.”
    The plans under which the building for the State, War, and Navy Departments was constructed were designed and intended for a monumental building within the meaning of the paragraph of the foregoing schedule which prescribes additional rates for such plans. In a number of cases the executive branch of the Government has employed architects at the rates prescribed by the foregoing schedule of the American Institute.
    
      Mr. George 8. Boutwell for the claimant.
    
      Mr. Felix Brannigan (with whom was Mr. Assistcmt Attorney-General Cotton) for the defendants.
   Davis, J.,

delivered the opinion of the court:

The plan upon which was constructed the building now ■occupied by the Departments of State, of War, and of the Navy was designed by the plaintiff herein. At the time of passage of the act authorizing the building plaintiff was Supervising Architect of the Treasury, and being consulted by the commission provided for in that act, he submitted' plans satisfactory to them, which were adopted, which, at the commissioners’ request, ho perfected, and in accordance with which the building was built. -At the request of the commission plaintiff superintended the construction of the building until 1875, when, severing his connection with the Treasury, he ceased to have further responsibility as to the new building, although requested to continue as superintendent of construction at a salary; a request which he declined.

We shall proceed directly to consider the defense based upon the statute of limitations, assuming (for the sake of argument only) that the relations of the parties were such as to create an implied contract, by which defendants were under obligation to compensate plaintiff for his genius and labor in the production of a design and in the superintendence of the construction. If such a contract ^existed when did the right arise to' sue thereon for a breach of the agreement1? Manifestly not later than the date when plaintiff severed all relation with the work, and that was upon the 1st day of January, 1875. At that time he ceased to be Supervising Architect and ceased to superintend the new building, although he was asked to continue to do so and promised payment therefor from that time on, a promise which had not been made to him when he was a Government officer. Upon January 1, 1875, therefore, plaintiff could have begun an action for any compensation as architect, had such compensation been refused, unless there is in the case some peculiar element presenting an exception to the general rule.

It is urged by the plaintiff that such an exception is here presented in this : That the measure of his recovery is to be found in the rules of the Institute of Architects; that under those rules he could not compute his fee until the building was entirely finished, which was in 1888, and therefore his petition is in time.

The clauses upon which the plaintiff relies as relieving him from the bar of the statute of limitations provide:

Until actual estimate is received, the charges are based upon the proposed cost of the works and the payments are received as installments of the entire fee, which is based upon the actual cost. The architect bases his professional charge upon the entire cost to the owner of the building, when completed, including all the fixtures necessary to render it fit for occupation,” etc.

It does not appear that prior to the filing of the petition herein plaintiff asked any compensation for his services, although he must have made estimates of the cost of the building. It is urged, however, that as an architect’s fee is based on the cost, and the actual cost can not be fixed until the building is completed, the cause of action does not arise until that date. This rule would be most unjust to architects if applied in the case of the Cathedral at Cologne, which was finished within this decade, and begun so long ago that all certainty as to the name of the architect is lost; and would work hardship upon the architect of an obelisk like the Washington Monument, which was thirty-seven years growing from corner to cap stone. But if the rule bears the interpretation sought to be placed upon it, still does it form the standard upon which"* any liability on defendants’ part is to be measured ? The rules of architects are made for those in private life; for architects who have a running expense of office rent, of draughtsmen, and of clerks, and stationery, and who are subject to competitive contests; they are made for men engaged in the active struggle and violent competition of business life, for men who have only a percentage of success, whose plans prepared at personal outlay are often declined in favor of those made by their rivals; in short, for men who take the risks of the profession.

On the other hand, the plaintiff was a salaried officer of the Government, not engaged in competition with his brethren in the art; he ran no financial risks, he paid no office rent, his stationery and his draughtsmen were the Government’s. Plaintiff gave the product of his mind and his personal endeavor, but that is not sufficient to bring him within the reason of the prices fixed by the Architects’ Institute. Those rates can justly be held to apply only to architects unsalaried by their employers, who give something more than their personal equation to the result accomplished. The rules do not apply to a case like the one at bar. Plaintiff, then, is not entitled to any exceptions which their clauses, if they governed the case, might give him; he severed his relations with the Government January 1,1875; this action was begun May 4, 1889, and is barred by the statute of limitations.  