178 Mass. 113 | Mass. | 1901
This case comes within the rule that where one engages for the act of a stranger he must procure the act to be done, and the refusal of the stranger, without the interference of the other party, is no excuse. That rule has been applied in this Commonwealth to the obligation of a person insured under
The defendant relies on the reference to Nolan v. Whitney, 88 N. Y. 648, in Beharrell v. Quimby, 162 Mass. 571, 575 ; and to O'Neill v. Massachusetts Benefit Association, 63 Hun, 292. The decision in O'Neill v. Massachusetts Benefit Association professes to be nothing more, and is nothing more, than the application to a right to recover “ sick benefits ” of the rule which is established in New York in case of building contracts. But Nolan v. Whitney is not law in this Commonwealth. On the contrary, it is settled here that in contracts for erecting buildings or doing other work where it is stipulated that the quantity or quality of the work to be done shall be determined by an engineer or architect whose decision shall be final, it is not open to either party to show, when the engineer or architect has passed upon the question submitted to him, that he was in error and ought not to have given a certificate when he in fact gave one; Flint v. Gibson, 106 Mass. 391; Robbins v. Clark, 129 Mass. 145 ; or that the certificate given by him was erroneous; Palmer v. Clark, 106 Mass. 373 ; and see White v. Middlesex Railroad, 135 Mass. 216, 220 ; New England Trust Co. v. Abbott, 162 Mass. 148. 154.
Judgment for the defendant affirmed.