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complete; (b) as the Telephone Company had the right, said to be reserved, to designate where the buildings should be placed; (c) as the Telephone Company had the right to add to or change dimensions of buildings, etc.
(a) Plans and Specifications. We have no doubt that an agreement to erect a telephone plant capable of serving 10,000 subscribers in accordance with the plans to be furnished by the proprietor or his architect, and to the satisfaction of either or both for a specified price, would be a valid contract, and, if this was all there was to it, the relation of master and servant would not be created, and that of independent contractor and employer would be.
(b) The Location. The fact, if such were the fact, that by the terms of the contract the employer might designate what lot in the city it should be placed upon, and what particular parts of the lot should be used for the several and respective buildings, would not make the contract invalid, and it would make no difference, though the contractor had bound himself to procure and pay for the same. Nor would it change the character of the contractor's relation of independent contractor to that of servant, or that of the other contracting party to master. Parties may make such contracts if they choose.
(c) Changes and Additions. These are practically covered by what has been said. It may be thought that these are unwise agreements for a contractor to make, but that is for him to settle. It seems to be suggested that the Construction Company may have been so unwise in this case that the concessions contained in the contract are consistent with the relation of master and servant only; yet to indulge such an argument, in view of express provisions, does violence to the language of the contract, and, as it is a question for the court and not for the jury (the bona fides being settled), we should say that it would be difficult to find a court who would so hold and it would be error if it did so. We should perhaps add that all of these alleged uncertainties must be looked at in connection with the thing that was under consideration, and the
Home Telephone Company's reserved rights must all be construed with reference to the reasonable necessities of the project. These matters, if uncertain, could be made certain by judicial construction and control if the parties were to disagree.
Control of the Workmen, etc. This is the really meritorious point on the question of construction. Does this contract reserve to the Home Telephone Company, and therefore take away from the Construction Company, the rights upon which the character of independent contractor depends? In other words, does it show that the latter is a mere representative of the Telephone Company, bound to do its bidding? That it has by its contract agreed to govern its action by the wishes or directions of the Telephone Company in some particulars is not enough, even if it would be were such agreement applicable to all—a question which we need not decide. Even the breach of such promise would not, under this contract, give to the defendant the right summarily to assume control of the work, subcontractors, and employés, but judicial proceedings for damages, or some equitable remedy, would have to be resorted to. Moreover, it is not provisions of that character which justify an inference that the intention of the parties was to make the contractor a mere agency to employ men and buy material for and on the account of the employer, so that, when bought, the material would be its purchase, and, when employed, the laborers would become its workmen subject to its control to the exclusion of the contractor. We must view this whole contract to determine whether the relation of master and servant was the intention of the parties, or was by reason of the terms of the writing actually created. We will refer to some of its provisions which are relied on as requiring us to find that the relation of master and servant is, and that of independent contractorship is not, deducible from this writ- . ing.
It is said that the contract gives the Telephone Com
pany a general supervision of the work with authority to enforce compliance with the provisions of the contract as the work proceeds, and that it gives a control over the details which is inconsistent with the rights of an independent contractor. The contract provides for a consulting engineer, to be appointed by the Telephone Company (though by the tripartite contract his tenure of office and the selection of his successors is within the control of the bondholders' trustee), who is to approve all material that goes into the buildings or plant before it is used, and the Construction Company agreed to use nothing else. It agreed, also, to carry out all directions, explanations, superintendence, and instructions which the consulting engineer should give in relation to materials or construction, and to the consulting engineer is committed the duty of making the changes in extent and character of the work and plans "necessary or proper" to the plant contracted for, or character of any part of the materials or work contracted for.
We will at this point, and before referring to others, consider these provisions relating to the consulting engineer. We have already seen that the Construction Company has the right and obligation of providing and paying as its own officer a chief engineer who is given the general supervision, direction, and charge of the work and workmen in its employ. The consulting engineer's relation to this job is much like that of a supervising architect. It was certainly competent for the Telephone Company to reserve the right to inspect and approve material and workmanship, and many cases support the proposition that the proprietor does not, by contracting for a right of supervision for the purpose of satisfying himself that the contractor carries out his contract, make himself responsible for the wrongs of the contractor and his employés to third persons-e. g., where a railroad company employs an engineer to superintend the general construction of the road-and to see that the work is done according to the contract, and that is so even though such pre
liminary approval is not contracted for. That is not equivalent to reserving the right to control the workmen of the contractor who are doing the work, and it would not be, although the contractor should have agreed that he would heed complaints of the engineer, and carry out his suggestions. That is not reserving the right to direct the methods by which the work shall be done, within the meaning of the rule. It is only providing for an opportune interference to see that the contractor does as he has agreed to do in relation to materials, workmanship, and results. The rule is thus stated in substance in 1 Thompson on Negligence, § 660, where many cases are cited:
In Bayer v. Railroad Co., 68 Ill. App. 219, it was held that:
"A railroad company was not liable, although it had stipulated with the contractor for the construction of its road and bridges that any foreman or laborer employed by its contractor who shall execute his work in a faulty or unskillful manner, or be disrespectful or riotous in his conduct, shall forthwith be dismissed by the engineer of the railroad company."
In Wendler v. Assurance Society, 19 App. Div. 50 (45 N. Y. Supp. 866), the court held:
"Where the superintendent of a building used for storing cotton, directs an employé of a contractor engaged to paint the building, to leave only one window open at a time on going through upon a scaffold used by him in painting, because of the danger from fire by the entrance of sparks," the proprietor was not liable.
In City of Erie v. Caulkins, 85 Pa. St. 247 (27 Am. Rep. 642), it was held:
"That a contract between a municipal corporation and a contractor for the construction of a sewer containing the provision, 'All work to be commenced and carried on at such times and in such places and in such manner as the engineer shall direct,' and requiring the contractor to dismiss from his employment all incompetent and unfaithful persons, did not reduce the contractor to the grade of a servant of the city, and make it answerable for his negligence.
In Hunt v. Railroad Co., 51 Pa. St. 475, it was held:
"A stipulation in a railway contract that the work was to be done in accordance with the plans, specifications, and instructions furnished by the company did not take the case out of the rule."
In Reedie v. Railway Co., 4 Exch. 244, 258, it was held that:
"The power to watch the general progress of the work and to dismiss incompetent workmen will not make him responsible for the negligence of the contractor."
And in Schular v. Railroad Co., 38 Barb. (N. Y.) 653:
"Nor will he be responsible where he retains the general superintendence of the work, where the contractor engages to discharge any servant at his request, and where he reserves the right to terminate the contract."
And in Steel v. Railway Co., 16 C. B. 550:
"Nor even where he reserves the power, by his engineer, to direct generally what shall be done, if the injury springs from the manner of doing it."
Mr. Thompson says of building contracts and of an extreme case, § 662 (i. e., Schwartz v. Gilmore, 45 Ill. 455 [92 Am. Dec. 227]):
"Application of this Doctrine to Building Contracts where Control is Reserved to Architects and Superintendents. One court has gone so far as to hold that where a proprietor contracts for the erection of a building, and, by the terms of the contract, retains control by an architect, under whose direction the contractor agrees to do the work, and also retains the power to change the plan of the work, he will be answerable for the negligence of the contractor. This, however, is not the sound view of the usual building contract. The contractor stipulates to deliver to the proprietor certain results. He is responsible to the proprietor for these only. The proprietor does not retain control over the contractor as to his methods of proceeding with the work. He could not do so; for the contractor is generally skilled in the business, and he is not. No contractor could safely stipulate to do a job at a