
    JOHN L. SMITHMEYER Et Al. v. THE UNITED STATES.
    [No. 16432.
    Decided June 9, 1890.]
    
      On the Proofs.
    
    Erom October, 1874, to October, 1886, the claimants, architects, at the request of committees and commissions of Congress, devote their time to devising and perfecting plans for the National Library. In 18S6 one of their designs is adopted by Congress, and they are employed to superintend the work at salaries of §5,000 and §3,000. It appears that about six years were spent in the evolution of and perfecting the rilan finally adopted. They sue for the commission to wliiclíthey would be entitled from an ordinary employer, accord • ing to the schedule of the Institute, of Architects.
    
      I. Tlioro is no intrinsic property in an architect’s designs; hut where they are tendered to a party for inspection, then hy a usage which can not. be questioned it is mutually understood to ho a tender of tho services which produced the plans and which are embodied in in them.
    II. Where an architect places his plans for a public building before Congress, it is a tender of the professional talent, experience, study, and labor which have produced the plans; and the construction of a building according to bis design is in law, usage, and good conscience an acceptance of the service.
    III. Where an architect’s plan for a public building has been accepted hy Congress, and he then departs from the general rule of architects by accepting a salary for superintending the work, with no reservation as to his compensation for the precediug service of preparing the plan, the court will compute its value according to the same standard, and not according to the schedule of the Institute of Architects.
    
      The Reporters’ statement of the case :
    The following are the facts of the case as found by the court:
    I. The claimants, John L. Smithmeyer and Paul J. Pelz, were, at the times hereinafter mentioned, copartners, doing business as architects in the city of Washington.
    II. From the year 1873 until the month of October, 1886, the claimants devoted their time as architects in the making of plans and drawings for a building for the Library of Congress. They acted under the direction and at the request of the commissions and committees of Congress mentioned in the following acts of Congress, viz : the Commission created by the Sundry Civil Appropriation Act March 3, 1873 (17 Stat. L., 510-513); the .Joint Committee oil the Library of Congress, Sundry Civil Act June 23, 1874 (18 Stat. L., 204, 226), and the Legislative Appropriation Act August 15, 1876 (19 Stat. L., 143, 1681; the Commission on the Enlarged Accommodation for the Library of Congress, Act April 3, 1878 (20 Stat, 35), the Joint Select Committee on Additional Accommodation for the Library of Congress, organized under the Act June 8, 1880 (21 Stat. L., 165), Deficiency Act March 3, 1881 (21 Stat. L., 414. 424), and the Act April 15, 1886 (24 Stat. L., 12).
    III. Under the act 3d March, 1873, providing for “apian for a new library building for a Library for Congress,” tbe commission appointed thereunder published and isSued the following prospectus or invitation to architects:
    
      “ Washington, August, 1873.
    “To ARCHITECTS:
    “ In accordance with the provisions of an act of Congress approved March 3, 1873, the undersigned hereby invite architectural plans or sketehes (not including details or working plans) for a new building for the Library of Congress, to be drawn in accordance wish limits and conditions which will be furnished to applicants. The sum of fifteen hundred dollars will be paid for such design as may be adjudged the best by the Commission; one thousand dollars for the second best, and five hundred dollars to the third best, to be paid on the 31st of December, 1873.
    “The plans must be submitted on or before the 1st day of November next, and addressed (prepaid) to the Librarian of Congress, Washington, D. 0.
    
      “ Commission:
    “ Chairman of the Joint Committee on the Library.
    
      “ Chairman of the Senate Committee on Public Buildings and G-rounds.
    “ Librarian of Congress.’7
    
      IV. During theensuing thirteen years, that is to say between March 3, 1873, and April 15, 1886, the claimants prepared for and submitted to different committees and commissions of Congress th& following sets of plans and designs for a library building, to wit:
    (1) In reply to the foregoing prospectus, the claimants submitted a plan for a library building in the Italian renaissance style of architecture to said Commission. Said building, by the terms of the prospectus, was to be 270 by 340 feet. These plans consisted of one perspective, one front elevation, one side elevation, one first-story plan, one second-story plan, and one section. They were accepted by said Commission in December, 1873, and claimants were awarded the first prize for excellence of design, and were paid therefor a premium of $1,500. In that, competition there were twenty-eight competí tors, and prizes for first, second, and third best plans, respectively, of $1,500, $1,000, and $500.
    (2) Shortly afterward claimants, at the request of the chairman and members of the Committee on the Library, submitted a new design as a modification of the above-mentioned design, making a changeof elevation and some changes of ground plan. This design consisted of a colored perspective, a front elevation, a portiou of first-story plan, and a part of the second-story plan, five drawings in all.
    
      (3) About 1875, at the request of Senator Howe, chairman of the Joint Committee on the Library, claimants prepared a plan for a new library building in the G-othic stylo of architecture upon, an entirely new basis. This plan was for a building 463 feet 11J inches by 332 feet 9 inches, and the series of drawings consisted of seven different sketches, but four of which were submitted to the committee.
    (4). Said Gothic plans were acceptable to the said committee, but at the session of Congress following, at the request of Senator Howe, chairman of said committee, claimants made modifications of the exterior design for said Gothic building, five in number, and these were submitted to his committee.
    (5) About 1877, at the request of Senator Howe, chairman of said committee, claimants prepared plans for a new Library building in the French renaissance style of architecture. These consisted of an elevation framed and colored and a pencil study of the front elevation. In general arrangement it corresponded with the Gothic design, which largely increased the capacity of the building over the premium plan, with the exception that the first and second stories were interchanged. In all designs previous to this one the building consisted of a basement, a very tall first story, and a subordinate second story. At the time these plans were prepared, instead of the Capitol Hill site originally contemplated for the erection of the-Library, the committee considered Judiciary Square as a possible site, and, at the request of the committee, claimants prepared two cross-sections of Judiciary Square with the proposed building located, showing- grades, sewers, etc. These plans were delivered to the said committee.
    (6) Claimants next prepared, at the request of the Joint Committee on the Library, a design for said building in the Romanesque style of architecture, with perspective elevations, that being a cheaper style of architecture, and permitting the use of coarser material than the Gothic. There were three drawings in all in this set of plans, and they were submitted to the said committee.
    (7) About 1879 claimants, at the request of said committee, prepared a design in the German renaissance style of architecture, with finished perspective and eight other drawings, consisting of front, rear, and side elevations, and a full set of plans of the different stories,.together with a section showing the halls and reading-room, all of which were fully developed. The study of the reading-room was an entirely new and original design, and is the idea carried out in the plans finally adopted by the act of Congress of April 15, 1886, and as set forth in the report of the Chief of Engineers of the Army mentioned in the Sundry Civil Act March 2, 1889 (25 Stat. L., 939, 966), as Exhibit D. There were also many changes in this set of plans, to wit, in the ground plans, and showing higher development and greater elaboration of original ideas and progress both in construction and light effect.
    (8) In 1880 claimants prepared full general drawings for a building in the Italian renaissance style of architecture, embodying all the improvements which had been made by the claimants since 1873. In this set of plans there were finished drawings numbering forty. These drawings consisted of a colored perspective, with a full set of ground plans, elevations, and sections, drawn on a large working scale one-eighth of an inch to the foot and one-fourth of an inch to the foot, showing the complete arrangements of the building. These plans, with exterior modified as set forth in paragraph 10 below, are the plans adopted by act of Congress of April 15, 1886, aforesaid, and they were re-adopted by the act of March 2, 1889, above cited. These plans, drawings, and designs, though prepared by the claimant’s firm, were prepared in consequence of a request made to J. L. Smithmeyer, individually, by the Joint Select Committee on Additional Accommodations for the Library of Congress under the act 8th June, 1880, as more fully set forth in Finding XII.
    (9) In 1882, at the request of the said committee, claimants redesigned and revised the Gothic plans above referred to in paragraphs 3 and 4 of this finding, making perspectives and front elevations. These revised plans were also turned over to the committee, and were adopted by the Senate in a bill passed by that’body authorizing the construction of a Congressional Library, but which failed in the House.
    (10) The set of Italian renaissance plans, prepared in 1880 by the claimants, under instructions of the committee, as aforesaid, was very severe and simple, and at the request of the said committee in 1885 or 1886 two new designs were prepared by the claimants in the same style of architecture and submitted to them. These exterior plans were more ornate than those submitted in 1880. They made no changes in the interior of the building, but were intended to affect only the exterior, and consisted of perspectives. These perspectives were made for the color effect of using different shades of material in the elevation. They are on a large scale, and carefully considered with reference to the architectural effect of the building.
    V. Claimants, in the year 1874, gave up their private business as architects, and from that time on until 1886 devoted themselves almost exclusively to the preparation of the plans above described, and up to the time of the commencement of this suit they had not regained their private business. In 1882 one of the firm, Mr. Smithmeyer, traveled throughout this country and in Europe, visiting different library buildings in New ■ York, Philadelphia, Boston, Baltimore, Liverpool, London, Paris, Brussels, Vienna, Berlin, Dresden, Leipsic, and Hanover, at the request of the said Joint Select Committee, for the purpose of obtaining information in respect to the architecture of the great libr ary buildings of the world.
    VI. When Congress, by the act 15th April, 1886, adopted the plans prepared by the claimants in the Italian renaissance style of architecture, as set forth in the preceding findings, the commission therein created was organized, and the work of constructing the Library building under and in accordance with the said plans so furnished by claimants and so adopted by Congress was commenced in the month of October, 1886. Under the direction of the commission the foundation was laid for the rotunda and center building and for the curtains and corner pavilions of the west front after the plan so adopted by Congress, while the cellar excavation and drainage system for the entire building has been completed. Some 29.000 cnbitfeet of cut granite for the cellar walls and piers, and also small quantities of terra-cotta pipe for flue linings and broken stone for concrete, had been delivered on the premises. Only about 23,000 cubic feet of the granite, however, had been accepted and paid for. A partial outfit of derricks, tools, implements, and other mechanical appliances had been collected, mainly by transfer from the completed building for the State, War, and Navy Departments, and a number of contracts were in force.
    VIL 1. In accordance with the provisions of the Sundry Civil Act October 2, .1888 (25 Stat. L., 505-523), General Casey, Chief of Engineers, on October 3,1888, assumed the superintendence of the new Library Building. In order to meet the requirements of said act, limiting the cost of said building to $4,000,000, General Casey so far changed the plans adopted by the act of -April 15, 1886, as to reduce the cost within this prescribed limit by cutting out the curtains connecting the wings with the central pavilion, and abutting the wings immediately thereupon, thus eliminating the courts formed by said curtain and the storage magazines contained therein, in this way decreasing the size of the proposed building and the amount of material required in its construction. The plans so submitted are the plans marked A in.the report of the Chief of Engineers, and are the identical plans submitted by John L. Smithmeyer and adopted by Congress by act of April 15,1880, wish certain parts omitted, as aforesaid.
    2. Plans D, mentioned in said act of March 2, 1889, are the identical plans which Congress had formerly adopted by the above-mentioned act of April 15, 1886, with certain interior parts of the building for book magazines omitted, which omitted parts are shown in the drawings appended to the said import of the Chief of Engineers.
    Till. At the time when the Act 15th April, 1886 (34 Stat. L., p. 12), authorizing the construction of a library building “ substantially according to the plan submitted to the Joint Select Committee on Additional Accommodations for the Library of Congress by John L. Smithmeyer in the Italian renaissance style of architecture, with such modifications as may be found necessary or advantageotis without materially increasing the cost of the build-' ■mg,” no specifications fixing or designating the material of the building had been adopted; and until such specifications were adopted or the kind of material was in some way determined it was impossible to fix except approximately the amount of the estimated or anticipated cost of the building to be constructed. The first estimate of the cost of the buildiug authorized by the act April 15,1886, made by any officer or agent of the Government was made by the Chief of Engineers of the Army in his report to the Speaker of the House, of Representatives, bearing date December 1,1888; that is to say, alter the duty of constructing the building had been devolved upon him by the Act 2d October, 1888 (25 Stat. L., pp."505, 523). In this report he submitted to Congress an u Estimate of the cost of the 
      
      original plan modified,,” wliicU “ estimate” amounted to $6,003,-140. This Original pían “ modified ” was the plan of the claimants adopted by the act April 15, 1886, and the modification consisted in omitting about one-sixth of the finished interior, though retaining the external walls of the building as originally designed by the claimants. The portion so omitted would cost, if built according to the original plan, about $1,000,000 in addition to the estimate of $6,003,140 made by the Chief of Engineers for the modified plan. This modified plan to cost $6,003,140 was designated in the report to Congress as Plan D, and is the plan adopted and authorized by the Act 2d Mar eh, 1880 (25 Stat. L., pp. 939, 966). But in 1884, while the claimants’ plans were still under consideration in Congress, the claimant Smitlnneyer prepared a paper entitled “ Description of the plans lor a new building for the Congressional Library,” which was “ordered tobe printed for the information of the members of the House April 3, 1884.” The plans referred to in this document were the same plans then before Congress, subsequently designated as the plan of John L. Smithmeyer in the act of 1886, after which the building is now being constructed ; and it was an accurate description of the said plan as then existing. It concluded with the following paragraph:
    “ The approximate estimate of the cost of completing this structure, made from the drawings on hand this date, i. e., the plan adopted by the committee, in the Italian renaissance style of architecture, in stone and iron, will be $3,262,600, and the cost of completing such portions of the inside for occupation as will accommodate one million of books will be $2,323,600.”
    IX. The usual and customary schedule of charges and the professional practice of architects, as prescribed by the American Institute of Architects (chartered under the laws of the State of New York, and of which both claimants are members), the Western Association of Architects, and other architectural societies, including the District of Columbia, and by the profession generally, fixes the rates of compensation and rules governing the same as follows:
    “For full.professional services (including supervision), 5«per centum upon the cost of the work.
    “ The charge fgr partial service is as follows:
    Por cont.
    Preliminary studies. 1
    Preliminary studies, general drawings, and specifications.2-J
    Preliminary studies, general drawings, specifications, and details.. 3|
    
      “ For works that cost less than $10,000, or for monumental and decorative work and designs for furniture, a special rate in excess of the 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 services 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 t he 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 Library of Congress is being constructed are 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.
    X. The jfians prepared and submitted by the claimants, and accepted and so used by the Government in the construction of the building, consisted of “ preliminary sketches, and general drawings,” within the meaning of the classification in the schedule of the American Institute of Architects, and were so complete and perfect that any competent architect could take them and construct the contemplated building from them without the assistance or advice of the claimants. For such preliminary studies and general drawings the rate of remuneration prescribed in the schedule set forth in the preceding finding is with specifications added 2 J per cent, upon the cost or proposed cost of the work ; but, inasmuch as the kind of material and the style of finish for the Library Building had never been fixed upon by Congress, nor by any officer or agent of the Government, no specifications were ever prepared by the claimants. They consequently were unable to furnish the specifications and were relieved from the duty and labor of preparing them. The court finds $3,300 to be the reasonable value of the service of preparing specifications for this building from which the claimants were so relieved 5 that is to say, if tbe claimants are entitled to recover a commission of 2¿ per cent, on tbe cost or proposed cost of the building, the sum of $3,309 represents the amount which may be deducted for specifications, which they were ready and willing to furnish, but which they did not in fact furnish to the defendants.
    XL On the 1st of October, 1880, the Commission created by the act of 15th April, 1880, appointed the claimant, dolm L. Smitlirneyer, architect of the Library Building, and fixed his compensation at $5.009 per annum. On the 13th November, 1880, the Commission also appointed the elaimaut, Paul J. Pelz, principal draughtsman, and fixed his compensation at $3,000 per annum. The appointments were in writing'. Mr. Smithineyer continued in the service of the defendants as architect of the Library Building until October 3, 1883, when he was removed by the Chief of Engineers. Mr. Pelz is still employed. The claimantsat the time of accepting such appointments did not notify either Congress or the Commission that they intended to charge according to the schedule of the institute for the plans furnished, nor did they so notify Congress or the Commission before the work began on the building under the act of 1886, but had previously notified the chairman of the Joint Select Committee that they intended to charge for the plans. During the preceding twelve years— that is to say from October, 1874, to October, 1886 — the claimants gave substantially their whole time to the service of the committees and commissions having charge of the subject of a library building, as is more particularly set forth in Finding IV, and they also furnished the necessary draughtsmen and clerks and office room. It has been shown that the cost of draughtsmen, clerks, and office rent is usually about 50 per cent, of the gross receipts of an architect’s business, and that the cost of plans and specifications in the office of the Supervising Architect of the Treasury is about 2?¿ per cent, of the cost of the buildings ; but it has not been shown what were the expenditures of the claimants during the twelve years above mentioned, further than that their office rent was $600 per annum, and that they ordinarily employed a number of clerks and draughtsmen whose compensation respectively ranged from $2 a day to $10 a day.
    XII. Immediately after the enactment of the act 8th June,, 1880, the Joint Select Committee therein named selected Edward Clark, Alexander B. Esty, and the claimant, John L. Smithmeyer, as the three suitable persons contemplated by that act to determine whether it was practicable and beneficial to provide additional library space in the Capitol or preferable to erect a separate building. The claimant’s appointment was in the following words:
    “Booms op the Joint Select Committee “on Additional Accommodationspob “THE LlBEABY OP CONGEESS,
    
      “ Washington, I). O., June 17, 1880.
    “John L. Smithmeyeb, Esq.,
    “ Washington, _D. 0. :
    
    “ Sib: The Joint Select Committee contemplated by the act of Congress approved June 8, 1880 (a copy of which yon will find inclosed), being duly organized, have directed me to notify you that you have been selected as one of the “ three persons of suitable skill and attainments” provided for in said act to consider the questions therein named.
    “In making this communication to you the committee desire to call your attention to the provisions of the first section relating to the examination of the Capitol Building. This examination will be made in connection with your associates, Mr. Edward Clark, Architect of the Capitol, and Mr. Alexander B. Esty, of Boston.
    “ It is not deemed necessary further to point out your duty in connection with the first section of said act except to call your attention to the last sentence of the same. Yon will observe that provision is there made, for a comparative examination and 'estimate of the advantages between library accommodations connected with the Capitol and the erection ,.f a separate building for that purpose.
    “ The object of the act is to empower ‘ three persons of suitable skill and attainments ’ on the subject of architecture to determine whether it is ‘practicable and beneficial’ to provide additional accommodations for the Library in connection with the Capitol Building, or whether it is preferable to go elsewhere and erect a separate building. If you and your associates find adversely to tbe idea of building on the present Capitol, then the committee desire you, and each of you, to submit plans, specifications, and estimates for a building at some eligible point in the city disconnected from tbe Capitol. In doing this thecorn-mittee would advise that what is known as Judiciary Square, and also the ground east of the present Capitol Grounds, be taken into consideration; but in designating these points the committee do not intend to be understood as excluding from your consideration other eligible sites that may occur to you.
    
      “ If a new building should be decided on, it is the judgment of the committee that it should be not less than four hundred and fifty (450) feet in length and three hundred (300) feet in width; that it should be constructed of material as durable as the two wings of the Capitol, and that the interior should be brick, iron, or other material as nearly fire-proof as possible. As to the interior arrangement and the practicability of its future extension and improvement, it is the desire of the committee that you consult with the Librarian of Congress.
    “ It is proper in this connection to call your attention especially to that part of section 1 which looks to the improvement of the 1 legislative halls,’ 1 the convenience, of communication between them,’ 1 their better ventilation, light, and exposure to the open air.” That subject you will consider in connection, however, with the primary purpose of this legislation, which is to provide a structure for the better accommodation of the Library of Congress and for its future wants.
    “ The committee earnestly hope that you and your associates will be able to meet at an early day and proceed with the duties pointed out in this act. They hope to receive a preliminary report from you, if possible, as early as the 1st of October next; and it is their expectation that they will have such reports from you as will enable them to report to Congress upon its meeting-in December next.
    “ The committee have designated Mr. Edward Clark, Architect of the Capitol, to act as chairman of the board when in consultation.
    “ Very respectfully, yours, etc.,
    “D. W. Voobhees,
    “ GhairmanP
    
    After receiving such appointment the claimant, Smithmeyer, ■entered upon and performed the duties therein indicated both with regard to the adaptation of the Capitol to the purposes of a library and with regard to a separate building. In the discharge of these duties he produced, at the request of the Joint Select Committee, in 1880, a plan or plans for the alteration and enlargement of the Capitol and a plan for a building to be erected on Judiciary Square, and likewise the plan- or plans described in Finding IV, subdivision 8, for a separate building. The latter plan or plans had inscribed upon them the name of Smithmeyer & Pelz, the claimants’ firm.name, and were prepared by the firm and at its cost, but were delivered to the committee by the claimant, Smithmeyer, and the plan so delivered was the same adopted and referred to in the act 15th April, 1886, as “ the plan submitted to the Joint Select Committee on Addi
      
      tional Accommodations for the Library of Congress by John L. Smithmeyer.’ It was reported to Congress by the committee on the 14th January, 1881, restudied and greatly improved by the claimants, and was afterwards modified at the request of the commif tee, as set forth in paragraph 10 of Finding IY. Xo express contract or agreement was entered into by the committee and the claimant, Smithmeyer, determining his compensation for his services generally, or for preparing these specific' plans; neither was any contract whatever entered into between the committee and the firm of Smithmeyer & Pelz.
    XIII. — The following statement sets forth all the payments made by the defendants to the claimants in and about the matter of preparing plans for a building for a Congressional Library, including a plan for the extension of the Capitol. With the exception of the first item of $1,500, all the payments, were made to Smithmeyer alone, for his individual services, under the provisions of the act of June 8,1880:
    
      Statement of payments.
    
    Prom the $5,000 appropriation of Marcli 3, 1873, “ for a plan for a new building for a library of Congress” (17 Stat. L., 513):
    On Dec. 29,1873, “ for one set of designs for a new building for the Library of Congress, tlie amount of the first premium”..$1,500.00
    Prom the appropriation of $8,000 made by the Aei of Jane 8, 1880 (21 Stat. L., 165), and the Act of Mqrci, 3, 1881 (ib., 424), to be expended by the Joint Select Committee created by said act of June 8, 1880, for the purposes therein mentioned:
    On Aug. 10, 1880, “for services rendered the Joint Select Committee to provide additional accommodations for the Library of Congress”. 600.00
    On Oct. 23, 1880, “ for services rendered and drawings submitted for ” said committee. 500.00
    On-•, --- “for draughts of plans, etc., for Library Building”. 802.00
    On Fel). 26, 1881, “for ground plans, elevations, and perspective drawings of the Capitol Building, as illustrating the preliminary report on the subject of exreuding it ”.. 650. 00
    On March 30, 1881, for “ professional services rendered”-. 650. 00
    On Nov. 2, 1881, 'for “labor on plans, sections,” eic. 500. 00
    On Peb. 28, 1882, for “ services rendered”... 400. 00
    On June 29,1882, for “ x>rofessional services rendered ; i, e., estimates, drawings, etc., etc.”. 500.00
    On Aug. 23,1882, “ for professional services up to date”... 800.00'
    On January 20,1883, “ for services rendered as professional expert ”. 955. 00
    On January-4, 1883, “for drawings, photographs, copies of plans, and books purchased from C. Pulman, esq., custodian of British Museum ”. 40.88
    Total as above 7,897.88
    
      XIV. The claimants have not submitted any demand to tbe Secretary of the Interior under the provisions of the act of October 2, 1888, above cited, for adjustment and determination; nor have they, or either of them, made any claim to the executive department in regard to any matter alleged in their petition looking to the payment of the fees or compensation demanded in this suit.
    XV. Since October, 1886, the Library Building has been and still is in process of construction according to the plan designated by the act 15th April, 1886, modified by the act 2d March, 1889, as is more fully set forth in the preceding findings.
    XVI. The court finds the fair and reasonable value of the claimants’ services in preparing the plans delivered to the Joint Select Committee and reported to Congress on the 14th January, 1881, and which are now being used by the Government in the construction of a library building to be ($48,000) forty-eight thousand dollars.
    
      Mr. John Paul Jones, Mr. B. PL. Voorhees, and Mr. James Gole-man for the claimants.
    
      Mr. Felix Brannigan (with whom was Mr. Assistant Attorney-General Cotton) for the defendants.
    1. The plans for which compensation is demanded in this suit were prepared and submitted by the claimants in competition with the plans of other architects with no promise by the defendant to pay therefor any sum of money in excess of that which might be awarded them by the commissions and committees of Congress who had in charge the whole matter of procuring jilans for the building for the Library of Congress from the appropriations made by Congress from time to time for procuring such plans.
    2. When the plans of the claimants for said building were adopted by Congress by the Act of April 15, 1886 (24 Stat. L., 12), the claimants departed from the general rule of architects of measuring their compensation by the customary fees of their profession. Instead of holding to that rule, they each entered into a written contract with the defendant to construct said building according to their said plans at fixed salaries, to wit: Mr. Smithmeyer, as architect of the building, at a salary of $5,000 per annum, and Mr. Pelz as bis principal draughtsman, at a salary of $3,000 per annum.
    3. The provision in the act of October 2, 1888 (25 Stat. L., 505, 523), which empowered the Secretary of the Interior to pay “ the value of the plan for a library building, submitted to the Joint Select Committee on Additional Accommodations for the Library of Congress by John L. Stnifhmeyer in the Italian renaissance style of architecture,” is a voluntary act of legislative benevolence, and is in no sense a recognition of an implied contract. It is a legislative declaration against an implied contract; and the jurisdiction to find the value of said plans is vested alone in the Secretary of the Interior.
    4. The defendant is not, in any view of the case, bound to pay the fees prescribed by the American Institute of Architects.
   Nott, J.,

delivered the opinion of the court:

The outlines of this case are these:

In 1873, the Library Commission, under the Act 3 March, 1873 (17 Stat. L., p. 510, 513), by advertisement, invited plans for the Library of Congress and offered prizes. The claimants presented plans, were awarded the first prize, and paid the amount thereof, $1,500.

For the next thirteen years they spent nearly their entire time in preparing other and additional plans for the new National Library. The work was done at the request of, and in close consultation with the committees and commissions of Congress. It seems to have been' mutually understood that these committees and commissions, with one exception, had no authority to contract with the claimants or incur an obligation on the part of the Government, and the subject of compensation seems never to have been under consideration. Yet the work done by the claimants was immense, and the plans in response to repeated requests well-nigh endless. There were designs for Italian renaissance; for gothic; for improved gothic; for French renaissance ; for German renaissance; for Romanesque, and for revised Italian renaissance. There were designs for new interiors, and for changed dimensions, and for different materials.. More than one hundred finished plans were elaborated and delivered to the committees. The claimants also traveled through Europe and examined the great libraries of the old world and brought back new ideas which were incorporated in new plans. Finally, on the part of the claimants, the most desirable elements of all the designs were incorporated into one, and on the part of the defendants, the general plans to carry it into effect were reported by the Joint Select Committee in 1881, and adopted by Congress in 1886.

In October, 1886, so soon as a plan was adopted and the erection of a building authorized, Hr. Smitlimeyer, the senior member of the claimants’ ñrm, was appointed architect, at a salary of $5,000 a year, and Mr. Pelz principal draughtsman, at a salary of $3,000. Mr. Smitlimeyer held his place as architect of the building only two years; Mr. Pelz is still employed by the defendants.

Besides the services which the claimants rendered from 1873 to 1886, they likewise furnished to the committees and commissions of Congress all the designs, plans, estimates, draughts-men, clerks, computers, and office room necessary and incidental to the work of an architect. It does nob definitely appear how much money they thus expended for the benefit of the Government, but it does appear that the expenses of an architect’s office are usually about 60 per cent, of the gross receipts, and, in confirmation thereof, that these expenditures in the office of the Supervising Architect of the Treasury are about 2-J per cent, of the cost of the buildings.

The demand which the claimants have accordingly presented by this suit is for a commission of 2J per cent. “ for preliminary studies, general drawings, and specifications,” as prescribed by the schedule of charges of the American Istitute of Architects, upon a building of the estimated cost of $7,000,-000. It appears by the evidence in the case that the executive branch of the Government has repeatedly employed architects who were compensated at the prescribed rates, and that at the present time the architect in charge of the new Naval Observatory is employed upon these terms. The claimants moreover rely upon the decision in Tilley v. County of Cook [103 U. S. R.) where the Supreme Court has said that if the architect’s plan had been used, evidence to show the usage would have been admissible, and has intimated that it would have been binding upon the county. In the District of Columbia v. Cluss (ibid, 705) the court also said that “ this was the ordinary rate of charge as compensation for similar services in the District.”

At this point a question arises — much discussed in tbe course of tbe argument — as to 'tbe cost or estimated cost of tbe building, upon which tbe percentage of tbe architect must rest. The building is not yet erected, its cost is still more or less uncertain, and many years will necessarily elapse before tbe actual cost will furnish a basis for calculation. Tbe Institute’s schedule of charges is not confined to tbe actual cost of a building, but contemplates “proposed cost” estimated cost, and actual cost.

Ordinarily, when a person about to build goes to an architect, be states an amount within which he wishes the ultimate cost to be brought, and almost invariably states it at less than the building he has in mind can be erected for. When the builder’s estimates come in, they vary the proposed cost, and, in the experience of most men, enlarge it. As the work progresses, unforseen contingencies arise and unplanned improvements are suggested until the actual cost, as a general rule, exceeds the estimated. Accordingly, the schedule of charges provides that—

“ Until an actual estimate is received, the charges are based upon the proposed cost of the work, and the payments are received as installments of the entire fee, which is based upon the actual cost.”

In the case of this Government building there was no owner coming to the architect and stating the “proposed cost,” and asking for a plan that would not much exceed it. The act of 1886, which adopted the plan, fixed no limit to the cost. The act of 1888 limited the cost to $5,000,000, but abandoned the design of the claimants, and contemplated the erection of a different and cheaper building. The act of 1889 returned to the claimants’ plan, with an interior modification in the way of omissions, suggested by the Chief of Engineers, and limited the cost of the modified building to $6,500,000, including the two previous appropriations. The omitted portions of the interior are about one-sixth of the whole building, and the saving from the omitted parts is estimated at about $1,000,000. In the meanwhile an estimate on the claimants’ plan as modified by the Chief of Engineers, was made by that officer and submitted to Congress on the 1st of December, 1888, whereby he places the cost of the proposed modified building at $0,003,-140. It is therefore said that if the claimants are entitled to recover at the rate which usage has established as the compensation of architects, the estimated cost of the building may be taken at $7,000,000, and their percentage will amount to $1.75,000, less the cost of preparing the specifications, which was $3,300.

We come now to the defense which the counsel for the G-ov-ernment has presented.

Although the claimants worked upon designs for the Library of Congress during a period of thirteen years, and produced at the request of different committees and commissions twelve distinct and original sets of plans, only one design was adopted, and for that one their counsel insist the defendants have paid nothing.

By the Act 8th June, 1880 (21 Stat. L., p. 165), the task of discovering a suitable design for the Library was assigned to what was termed in the act “ a joint select committee,” consisting of three members of each house, empowered “ to employ as soon as may be, at the expense of the United States, three persons of suitable skill and attainments ” to examine and consider the question of enlarging the Capitol and using it for the purposes of the Library.

The first section of the act is devoted to this idea of enlarging the Capitol, of improving it for legislative purposes, and of retaining the Library therein. The second section goes farther, and in express terms directs the Joint Select Committee “ at the same time to examine the question of a site outside the Capitol for the Library of Congress, and report to Congress what locations would be most suitable.” The third appropriated $5,000 “for the purposes named in this act.”

Three suitable persons were accordingly selected by the Joint Select Committee, one of whom was the senior member of the claimants’ firm. They reported adversely to using the Capitol for the purposes of a Library; but Mr. Smithmeyer, in addition to examining and reporting, also, at the request of the committee, framed an elaborate architectural design for the extension of the building, the incorporation of the Library therein, and the improved ventilation of the halls of Congress.

He did two other things at the request of the committee; he visited Europe for the purpose of studying the great public libraries there, and he produced plans for two distinct buildings on two different sites as contemplated by the second sec-iion of the act. The plan for one of these sites, with forty elaborate drawings, embodying all of the improvements which had been made by the claimants since 1873, prepared by them .and bearing their firm-name of “Smithmeyer & Pelz, Architects,’7 was reported by the Joint Select Committee to Congress on the 14th January, 1881.

In 1884, while the adoption of the claimant’s plans was still a subject under consideration in Congress, Mr. Smithmeyer prepared an elaborate paper entitled “ Description of the Plans for a new Building for the Congressional Library,” which was laid before Congress and “ordered to be printed for the information of members of the House, April 3, 1884.” In this document, which was cited and quoted in subsequent debates in both houses, he estimated the cost of the proposed building to be erected according to those identical plans, at $5,586,200. This was the first and only estimate of cost that had been made when the act of 1886 was passed. It is true that when the estimate was made, the material of the building had not been determined, and that the estimate professes to be approximate;” it is true that the Chief of Engineers has since then estimated that the cost of the building to be constructed will amount to $6,003,140, and that Congress has authorized the erection of a building at the cost of $6,500,000; but nevertheless the fact remains that when the act of 1886 became a law, and when the construction of the building began, the claimant’s estimate was the only one that existed. The Chief of Engineers, indeed, estimated differently; but that was a transaction between principal and agent, between master and servant, occurring after the claimant’s right of action was complete. Congress, too, authorized the erection of a more costly edifice; but the estimate of the Chief of Engineers and the act of 1889 were inter partes ; the principal might overrule the estimate of the agent; the legislative power could repeal the act of 1889. The building is not yet erected, the actual cost is not yet determined, and the claimants’ case therefore comes bach to the fact that the only “pro'posed” or “estimated cost” of the building which existed when the plan was adopted aud the Government’s liability began, was an estimate which they themselves had made, and upon which Congress had acted, and that this estimate named the probable cost of $5,586,200. We must therefore conclude that if the claimants are entitled to recover a commission of 2| per cent., the computation must be restricted to this estimate or proposed cost of $5,586,200, and can nob be made on the more probable but still uncertain cost of $7,000,000.

But it is not conceded that the defendants are liable for a commission on either of these amounts.

In dealing with this case it must be borne in mind always that there was no intrinsic property in the architect’s design. It was not covered by letters prtent; it was not protected by copyright. If an architect’s plans are lost or stolen it may be that á court of equity will enjoin a person not entitled to them from using them; but if he voluntarily makes an unrestricted surrender of them he loses all right or property in them; and when they are tendered to a party for inspection, then, by a usage so universal and self-apparent that it can not be questioned, it is mutually understood to be a tender of the services which produced the plans and are embodied in them. Accordingly in this case it must be held that when the claimants placed their plans before Congress their act meant a tender of the professional talent, skill, experience, study, effort, and labor which had produced the plans, and that the construction of a building according to their design would be in law, usage, and good conscience an acceptance of the service. The question therefore recurs upon what terms was this service to be paid for Í

Speaking for myself alone, I am of the opinion that compensation should be measured by the general rule and usage which govern the compensation of the profession. I think that in legal effect the claimants proffered their plans to Congress, through the intervention of the Joint Select Committee, for inspection, coupled nevertheless with the implied condition that if they were used, their services should be paid for, as like services are paid for by other persons; that when Congress adopted the design by the act of 1880, the case reached the condition of Tilley v. County of Cook (supra); and that when the defendants proceeded to give effect to the statute by actually using the plans in the erection of a building after their design, the case entered the third stage, in which, as the Supreme Court intimates, the legal liability of the employer at last becomes fixed, and the obligation to pay for the service becomes legally binding. Ithink, too, that the decisions of the Supreme •Court holding that the usage of architects extends to and is binding upon a body-politic erecting a public building (Tilley v. County of Cook, supra), and that it has a recognized and established existence in the District of Columbia (District of Columbia v. Cluss, 103 U. S. R., 705), are authority for holding the usage obligatory upon the Government for a building erected in the city of Washington. The sum which would be recovered is large ($136,355), but the services embodied in these plans extended through the best part of these men’s professional lives, and the risk which they ran was immense. From October, 1874, when they began to give their whole time to Congressional committees and commissions, until Octobei’, 3886, when the work of construction actually began, no liability had fallen upon the defendants, and no remuneration had been given to the claimants, who had fought through these ■twelve years against the professional competition of the whole world. The undertaking was a game of chance in which they .staked their business lives; and they having won, the other party which had the benefit of the exemption and of the competition and which chose to do business in that way should not, in my judgment, grudge them the prize.

But the majority of the judges are of the opinion that the acts of the parties indicate that the services should be estimated according to the rule of quantum meruit, and not according to the schedule of charges of the Institute of Architects. According to that schedule the claimants would be entitled to 2-J per cent, up to the point where the suit brings their service, and to another 2£ per cent, if that service should continue until the completion of the building. Instead of the latter, the defendants elected to give and the claimants consented to take two annual salaries amounting to $8,000 a year as an equivalent for the percentage they would be entitled to according to the schedule. The claimants having thus “departed from the general rule of architects of measuring their compensation by the customary fees of their profession,” as is insisted by the counsel for the Government, and having done this with no express agreement or reservation as to the preceding part of their service, the court is of the opinion that that part should be estimated according to the same rule which the parties have themselves adopted. Takingthesefactsof mutual acquiescence as elements for computing damages, and bearing in mind that a period of about six years existed between October, 1874, when the claimants began to give their entire time to what may be termed the evolution of these plans, and the 14th of January, 1881, when the plans were submitted to Congress (see Findings XI and XII), and remembering also that one of the claimants received from the Government for other professional services connected with a library during the same period the sum of $4,600, the court finds as the value of perfecting the design and preparing the plans a like equivalent of six years’ service at $8,000, and fixes the damages at $48,000.

The judgment of the court is that the claimants recover of the defendants the sum of ($48,000) forty-eight thousand dollars.  