162 Mass. 571 | Mass. | 1895
The only two questions reported for our determination are, (1) whether the ruling as to the certificate was wrong, and (2) whether upon the evidence the plaintiff was entitled to recover.
1. The ruling that the certificate given by the architect was not a final certificate, within the meaning of the agreement between the plaintiff and Orcutt, was right. By that agreement three certificates were called for, one before each payment. The certificate given was for the second payment. Although no certificate had been given for the first payment, the certificate for the second necessarily implied that the plaintiff was entitled to the first payment.
The plaintiff, however, contends that the defendant under his contract is not entitled to avail himself of this defence, although it might be open to Orcutt. This contention rests upon the language of the defendant’s contract, reciting that “ there is now due to Joseph. R. Beharrell from Edward R. Orcutt a sum
Judgment for the defendant. •
This certificate, which was dated April 16, 1892, and signed by the architect, was as follows : “«This is to certify that Mr. Joseph R. Beharrell is entitled to five hundred dollars, being the second payment on the contract dated December 24th, ’90, with Mr. E. R. Orcutt, for the erection of a dwelling-house at South Lowell, Mass.”