| Ark. | Mar 9, 1914
(after stating the facts.) The court, on its own motion, gave instructions Nos. 3 and 4 to the jury, over the objection of the defendant. The instructions are as follows:
“The parties having entered into the contract sued on voluntarily and having agreed upon the architect, VanDyke, as the arbiter of the matters specified therein, you are instructed that as to all such matters left to the determination of the architect, his decision is. final and binding upon the parties hereto in the absence of fraud or such gross mistake as to imply bad faith on his part. ’ ’ (No. 3.)
“If you find from a preponderance of the testimony that the plaintiff completed the building of defendant substantially in compliance with his contract, then you will find for the plaintiff the, difference between the contract price and the amount that has already been paid to plaintiff.” (No. 4.)
In the case of Boston Store v. Schleuter, 88 Ark. 213" date_filed="1908-11-30" court="Ark." case_name="Boston Store v. Schleuter">88 Ark. 213, the court held: “A stipulation in a building contract that the contractor shall be bound by the architect’s decision is binding upon both parties, in the absence of fraud or such gross mistake as necessarily implies bad faith on part of the architect. ’ ’
Therefore, it is contended by counsel for the defendant that instructions Nos. 3 and 4 are in conflict with each other. We do not think so. Under the terms of the contract it was provided that the decision of the architect as to whether the schoo-lhouse was built according to the plans and specifications should be binding on the parties, and the burden was on the plaintiff to show by proper evidence that the decision of the architect in the matters complained of was fraudulently made. Bush v. Jones, 144 F. 942" date_filed="1906-05-03" court="3rd Cir." case_name="Bush v. Jones">144 Fed. 942, 6 L. R. A. (N. S.) 774. To meet the burden thus placed upon him, it was competent for the plaintiff to show by proper evidence that he had done the work in all particulars as called for by the contract, as tending to show that the architect had arbitrarily and capriciously ordered the work to be taken out and new work substituted for it, and that such changes were not ordered made by the architect honestly and in good faith. It will be noted that instruction No. 4 told the jury that if it should find from a preponderance of the testimony that plaintiff had completed the building in compliance with his contract, then the verdict should be for the plaintiff. Now the contract provided that the decision of the architect, when made honestly and in good faith, should be binding on the parties. Thus it will be seen that instruction No. 4, when read in connection with instruction No. 3, was explanatory of it, -and not contradictory to it.
It is next contended by counsel for defendants that the court erred in refusing to give instruction No. 28. The instruction is as follows:
“The burden of proof is on the plaintiff to show that the specifications were changed after the execution of the contract, so as to eliminate the wooden cornice, and unless he has done this by a preponderance of the evidence, you will find for the defendant on that issue.”
We think the court erred in refusing to give this instruction. In the case of Klein v. German National Bank, 69 Ark. 140" date_filed="1901-03-09" court="Ark." case_name="Klein v. German National Bank">69 Ark. 140, the court held that the fact that a note sued on appears on its face to have been altered, raises no presumption against its validity, nor does it cast upon the plaintiff the burden of showing whether the alterations were made before or after its execution and quoted with approval the following’:
“The view best supported by reason, and the one to which the authorities seem tending, is that the mere fact of an interlineation or erasure appearing’ in an instrument does not per se raise any presumption either for or against the validity of the writing; and the question when, by whom, and with what intent an alteration was made is one of fact, to be submitted to the jury upon the whole evidence.”
The contract in question was not signed until the 15th day of June, 1912, and the plans and specifications were made a part of the contract. The bid .of plaintiff was received and accepted on the night of June 6, 1912, and the undisputed testimony shows that certain changes Avhich had been agreed upon by the parties were to be made in the plans and specifications before the contract should be reduced to writing and signed by the parties. The architect took the plans for the purpose of making these changes, and testified that he did so on the 7th day of June, 1912, and returned the plans and specifications to the contractor, and that the erasure of the wooden cornice was made before the plans and specifications were returned to the contractor and before the contract was signed by the parties thereto. On the other hand, the plaintiff testified that he did not receive the plans and specifications until after the contract had been signed and after he had commenced work on the building. He states that it was agreed betAveen them that his bid should be for a wooden cornice and that afterward the plans were changed so as to pnmde for a metal cornice; that at the time he signed the contract, he did not know that the wooden cornice had been erased from the plans and specifications.
Under the authority quoted above, we hold that the burden was on the plaintiff to make out all the facts upon which his case rests, and therefore the burden was upon him to show that the erasure was made after the contract was executed between the parties.
Again, it is contended by counsel for defendant that the court erred in refusing to give instruction No. 30. It is as follows: “You are instructed that if you find that the contract as signed called for metal cornice, and you so find from the evidence, you will find in favor of defendant for its necessary and reasonable expense in building the new cornice, provided that you find that the cornice was ordered taken out by the architect for not coming up to contract and specifications.”
We also think counsel are correct in this contention. As we have already seen, the defendants adduced evidence tending to show that the contract between the parties called for a metal cornice, and that, under the terms of the contract, the decision of the architect as to whether the building was constructed according to the contract and plans and specifications was to be binding on the parties. Therefore, if the jury found that the contract called for a metal cornice, and that the same was ordered taken out by the architect because it was not according to the plans and specifications, the defendant would be entitled to recover the reasonable cost of putting in a new cornice, and to have that amount deducted from the contract price. In other instructions the court told the jury that if they found from the evidence that the metal cornice, as put in by the plaintiff, was not according to plans and specifications, and had to fie removed on that account, the plaintiff would not be entitled to recover the extra compensation claimed by him for putting' in the metal cornice. The court also submitted to the jury the question of whether or not the contract and plans and specifications called for a wooden cornice or a metal cornice, and whether or not the defendant agreed to pay the plaintiff extra compensation for putting in the metal cornice ; but in none of the instructions given to the jury was the question of whether or not the defendant was entitled to recover for, or to have deducted from the contract price, the cost of putting in a new metal cornice, provided the jury found that the architect rightfully ordered the one that was constructed by tbe plaintiff to be removed because it was not constructed according to tbe plans and specifications.
The court also instructed the jury to find.for the plaintiff „on the item of addition to the rostrum. The undisputed evidence shows that after the work of constructing the rostrum was begun, it was ascertained that it was too small, and -the architect directed the plaintiff to make it larger, saying that he personally would pay-him the difference. The additional cost of this item was only ten dollars, and we would not reverse the judgment for that error alone, but would eliminate it by reducing the amount recovered by tbe plaintiff tbis amount. Tbe undisputed evidence shows that the architect himself agreed to pay the plaintiff for the additional work on the rostrum, and that the work was done pursuant to this agreement with the architect. Therefore, the defendants were not liable for it.
For tbe error in refusing to give instructions Nos. 28 and 30, -asked by the defendant, the judgment will be reversed and tbe cause remanded for a new trial.