| Ill. | Oct 23, 1906
delivered the opinion of the court:
First—Appellant contends that the suit was brought prematurely. This is based on the provision of the contract above quoted, which provides that the balance shall be due within ten days after the building is completed, and after a certificate that the premises are “at the present time, when payment is made, free from all mechanics’ liens and other claims chargeable upon said building or estate, incurred by the party of the first part.” Appellant contends that this certificate should have been presented ten days before the suit was brought, when, in fact, it was only served two days before the commencement of this action. Under this clause of the contract appellant had the right to tender the payment and demand the certificate of freedom from liens at any time within ten days after the completion of the building, but appellee could not compel payment until the last day. The payment here was to be made within ten days, and not after the expiration of the whole time. The use of the word “within” requires the perfqrmance to be within the time designated. A legal tender could have been made on the first day or any subsequent day within the ten day limit, but appellant could not be put in default until the close of the last day. The certificate that the premises were free from liens was properly tendered when the payment was demanded. The contract does not contemplate that the certificate of freedom from liens should be made ten days before payment. The language employed in respect to this certificate means that appellant was to have the assurance that the premises were clear of all liens at the time the money was paid. If ten days -\yere to elapse between the making of the certificate and the payment, liens might be acquired or filed after the certificate and before payment. The parties appear to have carefully provided against this contingency by requiring the certificate to show that the premises were free from liens at “the present time of payment.”
There is, however, another conclusive answer to this contention. ■ Appellee contends, and the contention is supported by the evidence and the finding of the Appellate Court, that even if appellant’s construction of this clause of the contract be granted, appellant had waived its right to raise that question by its unconditional denial of liability on other grounds. There can be no doubt of the rule that a party having a right to insist upon a condition precedent to the payment of money or other performance on his part will waive the condition precedent by a total denial of liability or by placing his refusal to perform on other grounds. This rule has often been applied to contracts of insurance; but it is a salutary and well established rule of the common law, the application of which to all contracts will effect justice and cut off subsequently discovered excuses for the violation of contract engagements.
Seco-itd—Appellant contends that under the contract the architects were not constituted the final judges in any matter pertaining to this building except as to the true meaning and ■ intérpretation of the plans and specifications. We have set out such parts of the contract and specifications in the statement preceding this opinion as appear to have a bearing on this contention. There is no general clause in the contract expressly making the acceptance of the building by the architects binding on appellant. Such power, if it exists at all, is to be gathered from a consideration of the whole contract. The contract provides that the building is to be finished “according to the plans and specifications and in a good and workmanlike manner and to the satisfaction of the architects.” In another clause it is provided “that should any dispute arise respecting the true construction and meaning of the drawings and specifications, the same, shall be decided by the architects, and their decision shall be final and binding.” The last clause of the contract is as follows: “The party of the first part is to procure certificates of payment from the architects.” In the specifications, which are referred to and made a part of the contract, is found the following: “Any material delivered or work erected not in accordance with the plans and these specifications must be removed at the contractor’s expense without delay, and replaced with the material or work satisfactory to the architects at any time during the progress of the work; or in case the nature of the defect shall be such that it is not expedient to have it corrected, the architects shall have the right to deduct such sums of money as considered a proper equivalent for the difference in the value of the materials or work from that specified, or damage to the building, from the amount due the contractor on the final settlements of the accounts.”
With these several provisions in the contract, the court below, by instructions to the jury, construed the contract as making the architects the final judges' as to whether the building was constructed according to the plans and specifications. This ruling was correct. No other reasonable construction can be placed on the contract when all of the provisions of it are construed, together. By accepting the certificates of the architects and making payments thereon after many of the defects now complained of existed in the building, the parties themselves have placed the same construction on the contract that the court below did, and it is now too late to depart from that construction and insist on another, even if the language of the contract did lend a colorable plausibility to the contention. When parties to a contract have agreed to submit all questions to the decision of an architect or other umpire and to pay upon his certificate of performance, his acceptance and certificate are final and binding unless fraud or mistake can be shown. (Mc-Auley v. Carter, 22 Ill. 53" date_filed="1859-04-15" court="Ill." case_name="McAuley v. Carter">22 Ill. 53; Downey v. O’Donnell, 92 id. 559; Hennessy v. Metzger, 152 id. 505; Pacaud v. Waite, 218 id. 138.) Appellant makes no attempt to impeach the certificate of the architects for fraud or mistake, but proceeds on the theory that the certificate of the architects was not final.
There was no error in the construction placed on this contract by the court below, and what has been said here disposes of the criticisms made on instructions numbered 15 and 27, and they need not be further considered.
Third—It is contended by appellant that under the declaration averring performance of the contract appellee can not avail himself of a waiver. The stipulation under which the case was tried was broad enough to allow proof of a waiver even if the law required the appellee to allege a waiver.
Fourth—Much evidence was offered on the trial and many instructions given at the instance of both parties respecting the question whether or not appellee had performed the contract substantially according to the plans and specifications, and in this court both parties have presented elaborate briefs and arguments on the questions thus raised. In view of the construction already placed on the contract as to the power of the architects, under the contract, to determine authoritatively all these questions, and they having decided that the building was completed in substantial compliance with the contract, and since the appellant does not charge that the architects were guilty of fraud or committed any mistake, we regard all these questions as irrelevant and immaterial. Hence we do not deem it necessary to discuss them.
There being no reversible error in the record the judgment is affirmed. T , , ,
T , , Judgment amrmed.