110 Mich. 529 | Mich. | 1896
The plaintiff is the assignee of Joseph D. Boland, and as such brought suit. Mr. Boland was the
‘ ‘ Sixth. The said party of the first part shall, during the progress of the work, apply to the said architects, or the superintendent in charge of the work, for all needful explanation of the true intent and meaning of the said plans and specifications; that a working plan shall, at the expense of said second party, be furnished to the party of the first part, if required, it being expressly understood that all work described or referred to in the specifications is to be executed by said party of the first part, whether or not the said work is illustrated by the aforesaid plans or working drawings, and that all work shown by the plans and working drawings is to be executed by said party of the first part, whether or not said work is described or referred to in the said specifications; and if any apparent discrepancy shall be found to exist between the plans, working drawings, and specifications, the decision as to the fair construction, and of the true intent and meaning, of the plans, working drawings, and specifications, shall be made by the said architects, whose decision shall be binding in that regard upon the parties hereto.
‘ ‘Seventh. That any discrepancy or variance between this contract and the specifications hereinbefore referred to shall be interpreted and rendered in accordance with the requirements and stipulations of said specifications.”
When the plans and specifications were originally made, they provided for but three chimney stacks that should
There are a good many assignments of error made by the plaintiff, but, in our view of the case, it is not necessary to discuss many of them, as the issues involved are questions of law, and grow out of the construction of the contract. After a careful consideration of this contract; we can reach no other conclusion than that it falls within the case of Guthat v. Gow, 95 Mich. 527, and should ,be governed by it. The plans and specifications were accessible to, and examined by, Mr. Boland, before he made his contract. An examination of them would show there were apparent discrepancies in them. With that condition of things existing, Mr. Boland signed a contract containing the following provision:
*533 “That if any apparent discrepancy shall be found to exist between the plans, working drawings, and specifications, the decision as to the fair- construction, and of the true intent and meaning, of the plans, working drawings, and specifications, shall be made by the said architects, whose decision shall be binding in th,at regard upon the parties hereto.”
This seems like a reasonable provision, and we think both parties are bound by it. ’
The circuit judge was requested to charge the jury, in effect, that, if the architects were guilty of fraud in making their decision, it would not be binding upon Mr. Boland or his assignee. The circuit judge refused to give this charge, and counsel for plaintiff makes a learned and exhaustive brief upon the error assigned to the refusal of the court to charge as requested, calling our attention to many decisions. The trouble with the argument is, there • is no testimony to base it upon. Unless the fact that the architects drew the plans and specifications, and were to receive as their compensation 5 per cent, of the total cost of the.building, will warrant an inference of fraud in their decision, there is nothing in the record to indicate but that their decision was made in the utmost good faith. We are not prepared to draw any such conclusion.
Judgment is affirmed.