190 Iowa 848 | Iowa | 1920
The plaintiff asserts that Brown does owe that difference, because the architect employed by Brown to supervise the construction of the building under his plans, ordered the extras claimed for of Brown, and therefore bound his principal to pay the con
Brown .urges that no such written order was ever made, and that no claim is made in the pleadings, either that such order was ever made, or that same was waived by defendant Brown. We find this statement as to the pleadings to be true.
II. Upon these premises, appellant contends that, no matter what oral authorization the architect may have given (denying that he gave any), the failure to authorize in writing is fatal, in the absence of plea and proof that the contractual written authorization was Avaived. It is contended, too, that plaintiff so construed the contract. But we find it unnecessary to pass upon this contention.
Recurring to the absence of written authorization, and to the question of waiver and plea and proof thereon, we have to say: It may be conceded, settled law, and to be held in Volquardsen v. Davenport H. & S. Sav. Bank, 161 Iowa 706, that, where there is an agreement which provides for no change or deviation from the plans and specifications, except upon the written consent and order of the architect, accompanied with a statement of the cost of change, the architect has no authority to make a change, except on these terms, and it may not be made effective against the owner that there was merely oral permission of the architect. In effect, that is the holding in Chicago Lbr. & Coal Co. v. Garmer, 132 Iowa 282, with the significant addition, how-1 ever, that this is so unless the change is “otherwise authorized or ratified. ” It is true that no waiver can be claimed without such plea. But that is not the controlling question. The real question is whether conduct on the trial did not waive the right to claim now that failure to have written authority is fatal. Though a AA'aiver must be pleaded, to be available below, it does not fol
There were objections to the effect that offered testimony was incompetent and immaterial, “under the written contract.” With one exception, these were motions to strike, made after answer without objection. But pass that. The objections were not made to anything that tended to show authorization other than written. They were addressed to testimony that Brown saw the making of one change and made no objection ; and addressed to testimony that a building should have ventilation ; and to whether a certain kind of window would improve and help the building. As to the remaining objection, a witness said that the items claimed for in the statement furnished by plaintiff and the labor performed were not included in the original contract. This went without objection. Then this objection was made:
“Brown at this time objects to these items being introduced as evidence unless there is some other evidence, other and different than the written contract, that will be introduced at this time. The evidence is not admissible.”
Nowhere can we find an objection that raises the point that testimony of oral authorization is not admissible because a written contract controls. It follows we cannot reverse because the authorization of the extras was given verbally, instead of in writing.