105 Ga. 400 | Ga. | 1898
Mallard, Stacy & Co., tbe owners of a lot ■of land in the city of Atlanta, entered into a contract with the •George H. Holliday Lumber' Company, whereby the latter agreed,' for a certain consideration, to build' for thé former a hotel to -be known as the “Alhambrá.” ■ The articles of agreement mentioned certain drawings and specifications 'as a part of the contract, and also contained the following stipulation: “Should any difference of opinion arise respecting the true construction or meaning of the drawings-or specifications, the saíne shall be decided by the architect, and his decision shall be final and Conclusive.”'" The hotel was to be- completed by September 18,’ 1895. :The lumber coínpány claimed that they had completed the building' according to contract, ánd that the owners were indebted to them in a certain amount. Shortly after the completion -of their work, the lumber company filed and recorded its lien' for this amount. The lien was transferred by the contractor to Moody & Brewster', who brought suit upon it against Mallard, Stacy & Co. The defendants filed certain pleas, among them one to the effect that the contractor had not •completed the hotel according to the contract, having failed to put in a certain heating-apparatus required by the specifications, to wit: “Furnace. — The same to be furnished and set up at the designated place, a number 14 Mott Furnace with the usual fixtures, furnished with cold-air ducts, etc., for general
The certificate of the architect, upon the completion of the work, that the contract had been fully complied with, can not aid the plaintiffs as to their failure to put in the heating-apparatus. If a contractor agree to put in a heating-apparatus and fail entirely to comply with this agreement, or if he agree to build a house of stone and in fact build it of wood, the certificate of the architect that the work had been completed according to contract would not bind the owner. In the case of Bond v. Mayor etc. of Newark, 19 N. J. Eq. 376, it was held: “The certificate of a superintendent, surveyor, or architect, who by the contract for any work is to superintend its performance, and whose approval is required before any payment is due, can not dispense with the performance of any substantial part of the contract, but may be binding as to the fact whether the work certified to- was done in a workmanlike manner, or of proper materials of the kind required. But such certificate would not make building a brick house a compliance with a contract to build one of marble. Nor would the fact that a house built of brick is substantially, and for service, as good or better than one of marble, make such a building a performance of the contract, upon being certified to be so.” In the case of Woodruff v. Rochester & P. R. Co., 108 N. Y. 39, Earl, J., in speaking on this subject, said, in relation to the power of
Judgment reversed.'