50 Ill. App. 366 | Ill. App. Ct. | 1893
Opinion of the Court,
This was a suit in assumpsit for a balance claimed to be due to appellee under a contract for the construction of certain buildings, and for extra work and materials.
The pleas were non-assumpsit, and set-off.
The contract between the parties made the architect the superintendent, and called for payments to be made on certificates by him, as the work progressed, to the extent of eighty-five per cent of its estimated value, and the remainder on completion to the satisfaction of the superintendent; and it was provided that before the superintendent should make his final certificate, the owner must be notified by the contractor that he was ready for a final settlement so that the owner might file with, or make to the superintendent, any bills or statements affecting the final adjustment between the parties.
There was a direct conflict of testimony between the plaintiff and the defendant, as to whether the notice required was given to the owner.
It was a question that should have been submitted to the jury in connection with the effect to be given to the final certificate that was issued, if that certificate was entitled to be considered at all by the jury, and the refusal of the court to instruct the jury in that regard was error. While the law is well settled in this State, that the decision of the architect is conclusive where the parties to a building contract make him the final arbiter between themselves as respects the character of the work done and the amount to be paid, it is equally the law that if the parties, by their contract, provide for notice, and a hearing by the superintendent, before his final decision shall be rendered, such notice must be given. Korf v. Lull, 70 Ill. 420.
There was also evidence in the case, tending very strongly to show that by agreement between the owner and superintendent, known to and acquiesced in by the contractor, the superintendent had, long prior to the giving of the final certificate, been discharged from all duties in connection with the buildings and the parties to the contract.
If the evidence established that fact, it might well be held to dispense with any certificate, and the defendant was entitled to an instruction covering that phase of the controversy. Any act of the owner which prevents the contractor from obtaining a certificate, relieves the contractor from the duty of procuring one; but it would not justify the contractor in buying a certificate.
It appeared that the final certificate was given by the superintendent in consideration of the payment to him by the plaintiff of a fee, or reward, of ten dollars. The evidence of the fact of the payment of money to the superintendent as a reward for examining the building and making out the certificate, is undisputed.
Except as an arbitrator between the parties, the superintendent had no duty to perform, under the contract, in the matter of determining the amount to be paid by the owner to the contractor and the issuance of a certificate.
For. an arbitrator to accept a reward from one of the parties, is highly improper, and his acceptance of it will vitiate his award.
Courts will not stop to inquire how far, if at all, the giving to and acceptance by, an arbitrator, of a reward from one of the parties, produced a prejudicial result. Nor will the party paying the reward be heard to say that no improper result was in fact produced by so doing.
It is sufficient that the payment of the reward was calculated to produce an improper result.
Neither was it a question of fact to go to the jury, as to whether the certificate was issued without fraud. It was a conclusion of law for the court. Moshier v. Shear, 102 Ill. 169; Carlett v. Dougherty, 114 Ill. 568.
The judgment of the Circuit Court will be reversed and ■the cause remanded.
