164 Iowa 364 | Iowa | 1914
The plaintiff, a building contractor, entered into an agreement with defendant to furnish the
I. As is usual in this class of cases the controversy involves many disputed questions of fact, upon most of which the trial court found against the defendant. We shall not go into any statement or discussion of the testimony upon these issues. They present no features of general interest or value to the profession, and their decision, depending as it does upon the particular circumstances of this individual case, is of no value as a precedent. We will only , say that upon a reading of the record we conclude the findings of the trial court in this respect are fairly sustained, and we discover no good reason for overruling them.
III. The most plausible ground of appeal is upon the defense that the building has never been accepted or approved in accordance with the provision of the contract which makes the final installment of the contract price payable at the completion of the entire building if the same is accepted by the architect ánd the defendant. So far as an acceptance by the defendant himself is concerned, we think if the work is shown to have been done in substantial compliance with the agreement (which we have already held to be established by the evidence), he cannot avoid payment by saying that he refuses to approve or accept the building. The only formal or written notice to the plaintiff of a refusal to approve the work was given by the defendant alone. The architect as a witness on the trial, while criticising the work done in several respects, does not testify that he ever refused, or now refuses, to accept the completed job. The entire record of his evidence on this point is as follows: ££'Q. Did you ever accept this building as being complete in compliance with the plans and specifications? A. No.” This denial is a mere argumentative conclusion, nor does it negative a substantial compliance. , The precedents relied upon by the appellant are of the familiar class, where the contractor agrees to accept payment for his work only upon the estimates or certificate of an engineer or architect, an agreement which we have held to be valid and binding. Under such contract it has also been held that these