49 Wash. 426 | Wash. | 1908
Lead Opinion
On February 15, 1905, the respondent Neufelder entered into a contract with the respondent F. Mc-Lellan & Co., by the terms of which the latter agreed to furnish the necessary materials and reconstruct and remodel, according to plans and specifications agreed upon, a certain building owned by the former, situated in the city of Seattle. F. McLellan & Co. sublet the furnishing and putting in place of a part of the required materials to the appellants, Camp and TeRoller, and among the enumerated articles to be furnished and put in place by them were certain prism lights. These were described in the specifications in the following language :
“All sidewalk lights to be 3x3 inches reflecting prism lens set in cement; all frames to be what is known as bar-lock construction. All joints must be made and guaranteed water tight. These lights shall be of the W. B. Jackson make, or equal, and shall be constructed to carry a safe load of 350 lbs. per sq. ft.”
The contract provided that the work must be performed to the satisfaction of the architect named in the contract, who had the right to approve or reject any and all work. When the appellants in the course of their work reached the sidewalk, they informed the architect that they had several prism lights equal to the W. B. Jackson light which they wished to submit to the judgment of the architect that a selection might be made therefrom. The architect refused to examine
The respondents present the case in this court on somewhat different grounds from that taken by the trial judge. Although they do not entirely abandon the position taken by him, they contend, (1) that a proper construction of .the specifications calls for the installation of the W. B. Jackson lights if they are procurable, and the substitution of others only in the case that these lights cannot be obtained; and (2) that since the contractors were bound to complete the building to the satisfaction of the architect, his decision on the question of the character of the lights to be put in was final, and the contractors for that reason have no cause of complaint.
But it has seemed to us that neither the reason given by the trial judge nor the reasons suggested by the respondents justify the judgment entered. The mere fact that the contractors put in the W. B. Jackson lights at the instigation of the architect does not estop them from claiming of the owner the loss sustained thereby. The architect, while he stood in the relation of umpire in some of his aspects under the contract, stood in the relation of agent for the owner in
Nor can we agree that the respondents’ interpretation of this clause in the specifications is correct. Manifestly the appellants were given the option either to put in the W. B. Jackson lights or lights equal to the W. B. Jackson lights. And this being so, the installation of either would be a compliance with the contract.
The last objection made by the respondents, while of more moment, seems to us also to be without foundation. While it is true that the contractors were bound to perform to the satisfaction of the architect, yet it was equally true that they had a right to demand that he exercise an independent and honest j udgment, and that he should not arbitrarily refuse to consider or determine matters submitted to his judgment. If the contractors did in fact produce lights equal to the W. B. Jackson light thejr had the right not only to install them but the right to have the architect’s approval of them before they were installed, and it was the architect’s duty to give them the benefit of his honest judgment in passing upon the character of" the lights produced. If he did not do this, but arbitrarily re
The judgment is reversed, and the cause remanded for a new trial.
Hadley, C. J., Crow, Root, and Dunbar, JJ., concur.
Dissenting Opinion
(dissenting) — The appellants in this case did what they agreed to do for a fixed price. They did no more. But they seek now to claim a greater price and to foreclose a lien for the excess, because they could have furnished another make of prism light at a cheaper price. The mere statement of the proposition ought to be sufficient to affirm the judgment. But assuming that the appellants had a right under the contract to substitute some other light for the “Jackson light,” one equal to that light, the contract does not provide that the appellants shall decide upon the substitute, but expressly provides that the work shall “be performed to the satisfaction of the architect.” Whether the architect is the agent of the owner makes no difference here. If the agreement had provided that the work must be performed to the satisfaction of the owner, he would then decide which light was satisfactory, and he might do so arbitrarily as the architect did, so long as he did so in good faith. Childs Lumber & Mfg. Co. v. Page, 28 Wash. 128, 68 Pac. 373; 24 Am. & Eng. Ency. Law (2d ed.), p. 1236. It is clear to my mind that the respondents desired a certain kind of building with certain named sidewalk light, “W. B. Jackson make, or equal,” and that the contract reserved the right to the architect to be satisfied when some light other than the particular one specified was offered to be substituted. The contract was entered into, of course, upon the basis of the cost of the “Jackson make,”
The judgment, in my opinion, should be affirmed. I therefore dissent.
Rudkin, J., concurs with Mount, J.