4 Neb. 77 | Neb. | 1875
Several errors are assigned as reasons for the reversal of the judgment in this case, and they will be examined without any regard to the order in which they appear in the record.
The main ground of defense was that the Rose Brothers did not perform their work in the manner required by the contract, and did not erect and complete the building in a good, sufficient and workmanlike manner. The plaintiff in error offered in evidence the deposition of J. E. Richmond, which was objected to and the objection sustained; he also called Thomas Holmes as a witness and asked him several questions which were objected to, and the objection sustained. The object and purport of
It is also insisted that the court erred in admitting in evidence the statements or certificates of the architect, offered by the defendants in error. There are three of these writings testified by the architect. The first is an order drawn by the architect on Mercer, in favor of Rose Brothers, for the amount of the installment then payable under the terms of the contract. This order was paid by Mercer, to whom the contractors receipted for the amount. The second was a similar order, and was like
The contract price was to be paid in installments as tlie work progressed towards completion, and the right of payment was made to depend upon the obtaining of tlie certificate, signed by the architect, under whose direction and to whose satisfaction the work was to be done, to be testified by wilting or certificate under liis hand. The evidence shows that tlie architect, if not daily, was frequently present during the progress of the work in the erection of the building, and that he gave the “writing,” testified under his hand, as the work advanced. Now, do these writings, or certificates, satisfy the conditions of the contract? We think under the circumstances of this case they do. It is very clear that the contract does not prescribe any form of the “writing” to be signed by the architect, and therefore it was necessarily left with him to adopt his own form, which he did; and the plaintiff in error, by paying
In Stewart v. Keteltas, 36 New York, 392, which was a case upon a contract, in regard to the powers and duties of the architect, in all respects similar to the one in the case at bar, the court say; “it was not necessary that the architect’s certificate should contain a statement that the work was done agreeable to the drawing and specifications, within the time, in a good, workmanlike, and substantial manner, under his direction and to his satisfaction.”
"When a man contracts with a builder to erect a dwelling house for him, selects an architect under whose direction he entrusts the superintendence of the work, and requires it to be done to the satisfaction of said architect, to be testified by writing under his hand, and such architect performs such duty, being frequently present during the erection of the building, draws orders on the owner for the payment of the installments of the contract price as they become payable, and when the house is completed, makes a final statement of the matter in writing, declaring the balance due, and draws
Again, it is complained tbat tbe court permitted the jury to take with them during their retirement, the “writing,” signed by tbe architect, giving an exact statement of tbe account between Mercer and tbe Rose Brothers. It was admitted by plaintiff in error on tbe trial, tbat this “paper set forth correctly all tbe payments which bad been made thereon.” In the consideration of this question, when we bring into view tbe fact tbat this “writing” was made by Mercer’s agent, under whose direction tbe building was erected, and to whose satisfaction tbe work was to be done, it seems clear tbat in contemplation of law, this “writing” was in legal effect tbat of Mercer himself. It could not mislead the jury, and, although we do not now pretend to decide upon the general question or lay down any rule in respect to tbe court permitting tbe jury to take any documentary evidence with them during their retirement, yet under, tbe pleadings and proofs in this case, we think tbe subject-matter of this complaint is not sufficient of itself, to disturb tbe verdict of tbe jury, or reverse tbe judgment thereon.
Judgment affirmed.