delivered the opinion of the court:
J. W. Patterson & Co. entered into a contract in writing with appellant to furnish the material and erect for him a hotel and bank building in Danville. They agreed to complete the building by November 20, 1895, and finished it May 6, 1896. The final payment was to be made within ten days after the contract was finished, upon the certificate of the architects. On May 7, 1896, said contractors filed their bill in chancery in the circuit court of Vermilion county to enforce a mechanic’s lien against the premises, and several sub-contractors intervened in that suit also claiming liens. The bill was dismissed without prejudice as to complainants,—perhaps because it was prematurely filed,—but the suit remained in court for the benefit of the intervening sub-contractors. Afterward, J. W. Patterson & Co. filed another bill to enforce their claim of a mechanic’s lien, and other sub-contractors intervened. The cases were consolidated, and the complainants and intervening petitioners, eleven, in number, are the appellees. Appellant answered both bills, admitting the contract but denying that the building was erected according to its terms, alleging that the contractors failed to furnish the architects’ certificate that the work had been done to their satisfaction, or evidence that the premises were" free from liens, and setting up payments under the contracts and damages for defective work and material. The, case was referred to the master in chancery to take the evidence, and he was ordered to report the same with his conclusions of law and fact. He took a great amount of testimony and stated the accounts of the contractors and sub-contractors, and reported the same with his conclusions. He made a very careful and full report upon all the claims of the respective parties, allowing some of the damages claimed and disallowing other claims, and found the lien of each contractor and sub-contractor, and the total amount, with interest from the time the same became due. Appellant objected to the master’s report, and upon an argument and hearing before the master he adhered to his report and it was filed in court. Appellant excepted to the report and there was a hearing before the chancellor, who came to the same conclusion as the master, overruled the exceptions and entered a decree in conformity with the report. The defendant appealed to the Appellate Court for the Third District. The record was there reviewed, and upon consideration thereof the decree fixing the rights of appellant and the contractors and sub-contractors was adjudged to be right and was affirmed. The Appellate Court struck out an allowance of $300 to the master in chancery as costs for stating the account, but found against appellant on the merits, and he prosecuted this further appeal to this court.
Counsel for appellant have bound together their original brief and argument in the Appellate Court and a lengthy argument in, reply to the appellees in that court, and have filed that volume here as their original brief and argument in this court. In this alleged brief and argument of questions pending in this court they are still assigning error and complaining of the allowance of $300 to the master as to which the Appellate Court sustained their assignment of error and struck out the allowance, and other questions are discussed which are not in issfie here. The brief is not a compliance with the rules of this court.
One of the points argued is, that the contractors were not entitled to any payment until they presented to defendant the certificate signed by the architects that the work had been done to the full satisfaction of such architects. The contract provided for certificates of that kind, and the rule is, that the decision of architects acting as umpires in such cases is conclusive, unless in case of fraud or collusion with the owner. The procuring of the certificate was a condition which the defendant had a right to insist upon before he made payments, but it was a right which he could waive, and he could not insist upon the condition if the architects refused to act at all or fraudulently withheld the certificate by collusive arrangement between him and them. (Fowler v. Deakman,
The principal single element of damage claimed by the defendant is $15 per day from November 20, 1895, to May 6, 1896, for delay in completing the building. The contract provided that the contractors would pay $15 per day as liquidated damages, except in case of delay caused,by the neglect, delay or default of any other contractor, or by any alteration which might be required; or by any damage by fire, or by the unusual action of the elements, or otherwise; or by the abandonment of the work by the employees through no default of the contractors, in which case additional time was to be allowed. No such allowance was to be made unless an application in writing was presented to the architects, who should award and certify the amount of additional time. The evidence showed that eighteen days’ additional time was required by reason of alterations and changes in the work required by the defendant, sixteen days also caused by the defendant being compelled to tear down and rebuild the north and east foundation walls, and thirty-five days by the unusual action of the elements. One hundred days’ delay was caused by the default of a sub-contractor which was deemed to be not within the exception, and for this time the master and court allowed $1500 as damages, which was charged against the sub-contractor. Three applications were made to the architects, under the provisions of the contract, for additional time, but they refused to make any allowance of time upon any account. They refused to even allow the additional time which was required by what the defendant himself did, and fronPall the circumstances, taken in connection with what occurred as to the final certificates, we conclude that their action was not in good faith; and if the conclusion that the delay of thirty-five days was within the terms of the contract is correct, the question of damages for delay should not be disturbed.
It is insisted that no delay on account of weather is "within the contract except some great and unexpected disturbance of the elements, but the. language of the contract is, “by the unusual action of the elements or otherwise.” This language shows the obvious intention that the contractors were not to be liable for delay on account of events which would render the work impracticable and which they could not control, and we think the evidence satisfactorily shows that the thirty-five days allowed came within that exception.
Another alleged error is that the court allowed interest on the amount due from the time it was payable by the terms of the written contract. The contract called for the construction of the building according to the plans and specifications, with such alterations as should be required. The suit was upon the contract, and the entire amount of all the liens became due upon this instrument in writing. By the statute a creditor is entitled to interest upon money after it has so become due. In Keeler v. Herr,
Claims for damages are verjr numerous, and relate to settling of part of the building where the foundation was built out of old rubble stone of a previous foundation, the kind and quality of material, and failure to put in certain anchors and rods, painting, glazing, and general bad character of the work and material. There are about two thousand pages of testimony taken before the master, and it is contradictory. We have examined it, and are satisfied with the conclusions of the master, the chancellor and the Appellate Court. To review it or go over the claims in detail would occupy a great deal of space with no resulting benefit.
The judgment of the Appellate Court is affirmed.
Judgment affirmed.