144 F. 942 | 3rd Cir. | 1906
This was an action in the court below for $3,065, the final payment upon a contract for the construction of a building, together with a bill of some $40 extras. The verdict was in favor of the contractors for $2,500, a material reduction, particularly if interest be counted; the jury necessarily finding, however, under the instructions of the court, that the contract was substantially, if not completely, performed. The chief subject of controversy was the condition of the cellar, which admittedly leaked badly, and that in the face of an apparent guaranty that it should not. The contractors also failed to produce at the trial a certificate of completion from the architect, as required by the contract. On both of
According to the specifications upon which the contract for the building was let, it was provided with regard to the concrete work and waterproofing of the cellar:
“The foundation shall be of broken stone (not slag) concrete made up as follows: 5 parts of broken stone, 2 parts Portland Gemeut, and 1 part of clean sharp screened gravel or bar sand; * * * all stone for concrete to be of approved quality. The outside of all foundation walls to be dashed with cement and sand, 1 part to 2 on the outside, and brought to a smooth surface, and the whole outside of the foundations, up to grade, to be coated with a thick coat of asphaltum pitch, put on with a, ‘mop.’ At a level indicated on the detail, there shall be a three-ply layer of felt, mopped with pitch, and extending 1' 0" on each side of the wall. This shall be turned tip on the outside, and carefully joined with the ‘mop’ coat of asphalt, until perfectly water-tight. On the side next the party lute on the west the foundation shall be divided by a one inch board from the bottom to a level of 1' 0" above the cellar bottom of the adjoining property; this board to be removed as the wall is built. The slot so formed is to be grouted in with asphaltum, thoroughly water-tight. The outside dashing or mopping will not occur on this wall. The layer of felt must occur on all other walls or piers, whether interior or exterior.' The cellar wall shall be 10" thick in all, the first 3" to be of concrete, smoothly dressed for the reception of asphaltum; then one inch of asphaltum perfectly joined with the felt layers above mentioned; then 5" of stone concrete; then one inch on top. The whole to be made perfectly water-tight and guaranteed.'’
It is claimed that the contractors by virtue of the last- provision were bound at all hazards to make a water-tight job; that being, in terms, what they had not only undertaken but guarantied to do. Rut to this we cannot accede. The guaranty was not absolute, but qualified. It extended to their own work only, and only so far as this was involved, to the result. The specifications, which were the work of the architect, and for which they could not be expected to assume responsibility, directed how the work should be done, and b} this they were controlled. So far as this was calculated to make a watertight cellar, they unquestionably guarantied that it would be such. But that is all. It was not as though they were left to their own judgment; that which they were to do, as appears above, being specified in detail. No doubt, if there was any margin of discretion — as, for instance, with regard to the thickness of the mop coat of asphalt on the outside of the foundations; or in the maimer of turning and joining the felt .therewith “until perfectly water-tight,” as it is said; or in grouting in “thoroughly” with asphalt the slot left for the purpose in the divided wall 'oil the west line — it would come within their guaranty to see that these things were effectively done; and if the wall would be water-tight or otherwise, according as the}’’ were or were not, they would be correspondingly liable; but outside of this, not. The owner having assumed to say by the specifications what was to be done, the contractors were relieved so far as they complied therewith. They guarantied, not the sufficiency of this to produce the desired result, but merely the effectiveness of what they themselves did under it. McKnight Flintic Stone Co. v. Mayor, 160 N. Y. 72, 54 N. E. 661; Filbert v. Philadelphia, 181 Pa. 545, 31 Atl. 545; Harlow v. Homestead Borough, 194 Pa. 57, 45 Atl. 87. It may
The other point raised is more serious. It was provided in the contract that the work should be paid for “only upon the certificates of the architect,” the final payment to be made within 30 days after its completion, and all payments to be due when certificates for them were issued. As already observed, the contractors produced at the trial no certificate of. completion, the evidence being that it had been demanded and refused; reliance being placed, in its absence, upon the showing made that the contract had been substantially complied with. The defendants, in view of this, specifically requested the court to charge that there could be no recovery if there was a failure to secure from the architects a certificate that the work was completed. This was refused, and the question reserved; the jury, instead,, being instructed as follows:
“It is said, also, that the plaintiffs did not comply with the contract in another important particular; that is to say, that they did not secure from the architect a final certificate of the completion of the work and the amount that was due. You have heard some slight testimony upon that subject, which shows that the architect refused the final certificate upon being asked for it; and, as I understand, he refused because the owner of the building was not satisfied. I intend to reserve the question as to the importance of the architect’s certificate in this case, and therefore I do not think that you need trouble yourselves any further about it”
As the result of this, the jury were allowed to find, as they did, in favor of the contractors, without the production of a certificate, and without any instructions as to its necessity or what would be sufficient to dispense with it; and by the subsequent entry of judgment on the verdict in favor of the plaintiffs, and the refusal of judgment non obstante on the reserved point, which was moved for, the court, in effect, held that, as a matter of- law, under the circumstances, the production of a certificate was not a prerequisite to a recovery, and that the refusal of it did’not have to be accounted for.
The law upon the subject of architects’ certificates is well settled. It is perfectly legitimate to provide in a building or working contract that payment of the several installments of the contract price shall only be made upon certificates or estimates by the architect or engineer in charge as to the extent and value of the work done or materials furnished, and that final payment shall not be demandable without a certificate of completion.. These are familiar provisions, universally recognized, and will be enforced. 30 Am. & Eng. Encycl. Law (2d Ed.) 1237. Equally well recognized, however, is it that the production of such a certificate as a condition precedent to a recovery is not necessary where it is capriciously or arbitrarily withheld. But where this is alleged it is incumbent on the contractor, in order to bring himself within the exception, if he does not produce a certificate, to show why he cannot, and until'he successfully does so he has not made out a case. This is sustained by the highest authori
*946 “Where in a building contract provision is made for the payment of the price or a portion or portions of such price upon the certificate or certificates of the architect in charge of. the construction of the building, the obtaining or presentation of such certificate or certificates is a condition precedent to the fight to require payment, and such condition must be strictly complied with, or else a good and sufficient excuse shown for not complying therewith.”
And he adds that compliance or excuse for noncompliance must be averred in the pleadings and established by proof. Fowler v. Deakman, 84 Ill. 130, is an instructive case as to what is sufficient evidence to dispense with the production of a certificate. The work there was to be done to the satisfaction of the architect, who was to be the superintendent, and he was made the umpire or arbitrator to settle all disputes, his decision being conclusive and binding. It was recognized that, this being the agreement of the parties, they were governed by it, and that a certificate was necessary unless the architect acted in bad faith, refused to act, became incapacitated, or was prevented by some unforeseen accident or uncontrollable cause. But it was shown that, after having been frequently called upon to give a final certificate, and after striking out some of the items of extra work, the architect, after delaying for about a year, declined to do anything further to adjust the differences between the parties, and it was held that, upon proof of this, the contractor was absolved from any further effort to procure a certificate, and entitled to recover without it. So in Bradner v. Roffsell, 57 N. J. Law, 32, 29 Atl. 317, where the fraudulent withholding of a certificate by the architect was in issue, such fraud, as it is held, may be proved by showing, as was there done, that the building had been completed in strict accordance with the contract, and that the architect had expressed his satisfaction with it, and had stated that the contractor was entitled to a certificate, followed by proof of a subsequent refusal of it. This does not substitute the opinion of the jury for the judgment of the architect, as the court is careful to declare, but simply shows that the expression of satisfaction by the architect was justified. Nor, if there was a substantial defect in the work, could the withholding of the certificate, as it is said, be regarded as fraudulent. But without multiplying citations, the same doctrine will be found expressed with equal vigor in Beharrell v. Quimby, 162 Mass. 571, 39 N. E. 407; Foster v. McKeown, 192 Ill. 339, 61 N. E. 514; Hudson v. McCartney, 33 Wis. 331; Coorsen v. Ziehl, 103 Wis. 381, 79 N. W. 562; Johnson v. Howard, 20 Minn. 370 (Gil. 322); Guthat v. Gow, 95 Mich. 527, 55 N. W. 442; McNamara v. Harrison, 81 Iowa, 486, 46 N. W. 976; and a host of others. There may be cases where the rule is relaxed, as in Happel v. Marasco (Sup.) 75 N. Y. Supp. 461; McKnight Flintic Stone Co. v. Mayor, 160 N. Y. 72. 54 N. E. 661, and Bird v. Saint Joseph’s Church, 154 Tnd. 138, 56 N. E. 129; and where mere proof of a substantial compliance with the contract, the same as is contended for here, is held to cast upon the owner the burden of proving why the certificate is withheld, and that negatively it is not arbitrarily or unreasonably done. But this, as we have shown above, is not in accord with the weight of airthority, and does not on principle meet with our approval. Neither can we agree with the
The conclusion to which this discussion leads is clear. Completion to the satisfaction and according to the trained professional judgment of the architect, who chew the plans and specifications, and is able to speak from á direct supervision over and inspection of the work as it progresses, and completion according to the opinion of the jury, under the .imperfect conditions of a trial and the inability to produce things as they actually are, are two different and distinct propositions; and the owner, who has stipulated for the one, is not to be put off with the other, where everything is honestly and fairly done. Whether • this is true, or whether the architect in withholding his approval acts capriciously or fraudulently, where there is evidence to sustain this charge, has necessarily to be submitted to the jury, and proof of a substantial compliance with the contract enters into this as an essential step. But to hold that, upon such proof, without more, the necessity for the production of a certificate is dispensed with, or is to be regarded as unreasonably withheld, and that, not as a fact, with others, for the consideration of the jury, but as a matter of law for the court, not only loses sight of the distinction which we have referred to, but makes the provision with regard to the architect’s certificate useless and meaningless, for it puts a contract where it appears on a level with one where it does not; the contractor in the former being permitted to recover upon showing that he has substantially complied with it, and in the latter being required to prove no less The jury in the present instance should therefore have been instructed that the production of a certificate was essential to a recovery, and that the want of it cohld not be dispensed with, unless it was established to their satisfaction that it had been unreasonably withheld. Bearing upon this, as already stated, was the evidence of a substantial completion of the work; but it should not have stopped there. Compliance with the contract was seriously questioned, and the material reduction made by the jury from the amount of the plaintiffs’ claim shows that at least some things were lacking. Admittedly, there was a leaky and imperfectly waterproofed cellar, and whatever may be said of the guaranty that it should be water-tight, there was in this an apparent- defect, sufficient to justify the architect in refusing to approve until it had been remedied. Had the jury, therefore, been instructed as to the necessity for his approval, and what was requisite to overcome the want of it, they might well have lies-
As the case is to go back, we are moved to the further observation that the jury in our judgment were allowed too great latitude with regard to what constitutes a substantial compliance; being told that it was sufficient if the work was complete except as to certain unimportant particulars, which a reasonable allowance would enable the owner to supply and remedy. No doubt this is a correct statement of the general rule, but the objection is to its application here. It is only intended to cover the inconsiderable details of construction, which do not enter into the substance of the contract, and the omission of which does not detract from the full benefit and enjoyment of it. It cannot properly be extended to a material part of the work, such, for instance, as the waterproofing of the cellar, which was considered of sufficient importance here to be covered by a' guaranty, however qualified. The failure of the contractors to meet this requirement was the issue on which the case mainly turned, and the jury were allowed by the instruction in question to find for the plaintiffs if they were of the opinion that compensation could 'be made by a deduction from the price for the defects which existed. -But the waterproofing of the cellar either was or was not completed in accordance with the contract, and, if it was not, it was manifestly too important to permit a recovery by making an allowance. It may be that, standing alone, we would not reverse upon this account, but as it is we do not feel like giving it our apparent sanction, or leaving in any uncertainty just what, in a case of this-kind, is necessary to make out a substantial compliance.
Judgment reversed, and a venire facias de nove awarded.