| Ill. | Apr 15, 1860
The contract under which the labor was per formed, provides that the architect is the superintendent of the owner, and by its terms, requires him to give interpretation to the contract, and certificates which the contractor might be entitled to receive, to make estimates of the amount to be added to or deducted from the contract price, occasioned by any change in the plan of the building or from any other cause. By it he had the power to require the contractor to remove all improper materials or work placed in the building. The contract also contains this clause: “And it is hereby expressly provided, that in case the contractor should feel aggrieved by the decision of the superintendent, an appeal may be taken from such decision to arbitrators, chosen indifferently, and whose decision in the matter shall be final and binding on all parties.” By a subsequent clause, it is provided that the owner in all cases shall be bound to recognize the acts of his superintendent, not only as regards extra work, but also the sufficiency of the design, the contractor being in no case responsible for accident resulting from a defective design, which fact is also to be determined by arbitrators, chosen in the same manner as previously provided ; and if they determine that the damage resulted from a want of proper care on the part of the contractor, the same shall be made good by him, but if from a defective design, all damages to be sustained by the owner.
It is insisted by appellant, that the agreement to arbitrate provided for in the first clause, only refers to the requirement to remove improper work, and the assessment of damages for extra work, and the second, as to questions whether the design is sufficient. These provisions are not, we think, so limited in their terms, nor is that the true construction. The contract had previously provided that the superintendent should give interpretations to the contract, and empowered him to give all certificates to the contractor which he might be entitled to receive, to fix all deductions from or additions to the contract price, growing out of alterations of the design, to determine the amount of damages which might accrue from any cause, and particularly to decide on the fitness of the materials used and work performed. Also to require the removal of all improper materials furnished, or labor done. Why the arbitration first provided for, should be limited to his decision on any one of these various questions, and the others to be excluded from its operation, we are at a loss to perceive. A decision on any of them, seems to be equally embraced in its provisions. The language fails in terms to exclude any portion of these questions, nor does any other portion of the contract manifest such a design.
The second clause, providing for an arbitration, seems intended to submit the question to arbitrators without any decision of the superintendent, when a difference arose as to the plans furnished by him. This clause referred to the question of the sufficiency of the design adopted by the superintendent, and it would be useless to leave him to determine its sufficiency, as he had already determined that question when he furnished it. So this clause provides for an arbitration in the first instance. This explains the reason why this clause was adopted. It can hardly be supposed, that any person in making a contract involving so large an amount as this does, would be willing to submit all questions of construction or dispute under the contract, to be determined by the agent of the opposite party, without any appeal, and give to his decision the conclusive effect contended for by appellants. We perceive no such intention of the parties manifested by the agreement, and they seem not to have so understood it, as they each selected a set of arbitrators, to settle and decide the questions litigated in this case. When the effort, to arbitrate fell through, appellants notified appellees that they would prefer to have the differences litigated, and declined to proceed with an arbitration. This clearly manifests that both parties understood, that under the "agreement all- questions were to be arbitrated, and they, we have no doubt, gave the contract its true construction. This court, in the case of Mills v. Weeks, 21 Ill. R. 561, and McAuley v. Carter, 22 Ill. R. 53, held that the decision of the architect is conclusive on the parties. This is unquestionably true where no objection is made to, or steps taken to avoid or reverse his decision. In these cases no question was made as to whether the parties were bound to arbitrate, and there was consequently no occasion to qualify what was then said. As no objection was taken to his decision when it was made, it was held to be conclusive on the parties. If the contracts in those cases were similar to this, and any question had been raised as to the power to appeal from the decision of the architect to arbitrators, different language would have been employed. This disposes of the question raised on the pleas to which the demurrer was sustained, as well as the instructions based upon the construction that the decision of the superintendent was, under all circumstances, final.
It cannot be held, because the contract provides that the decision of the superintendent may be reviewed by arbitrators, that the contractor shall be bound by his decision, when the other party has prevented or declined an arbitration. To hold such a doctrine, would place it in the power of the owner under this contract to escape all liability by the erroneous decision of his own agent. The law has not clothed parties with such power to commit wrong. It will not tolerate such injustice.
It is urged, that appellees were not delayed by appellants in the completion of the work within the stipulated time, and that the damages assessed by the superintendent for delay should have been deducted by the jury. This question depends upon who, under the contract, was to furnish the iron caps for the windows, and the iron belt-courses, and the cut stone for sills and belt-course of the towers. The evidence shows, that the delay was occasioned either in whole or in part by the delay in procuring these materials. It further shows that the appellants furnished and paid for a portion, if not all of them. And we nowhere find, from the evidence, that they ever claimed that appellees were to either furnish or pay for them. Again, the architect told appellees’ hands that they should be paid for the time they lost, by delay in furnishing these articles, and we find that appellants did pay to appellees’ foreman eighty-five dollars for the delay. Now when it is remembered that the superintendent was fully empowered to give a construction to the contract, and when we see that the appellants, under that contract, furnish materials and pay for them, without any explanation, and see that the superintendent promises the hands that they should be paid for the loss of time occasioned by this delay, and the appellants so paying them, the conclusion is irresistible, that the superintendent had given the contract the construction that appellants were to furnish these articles. If this be true, the appellees are not chargeable for the delay in not furnishing them in proper time, and the jury were fully warranted in not deducting the sum found by the superintendent for the non-completion of the building, on that account. The evidence was properly before the jury, and it was their province to determine whether the delay was occasioned by appellants, and we see no reason for disturbing their finding. Nor do we perceive that they were probably misled by the instructions given by the court. Upon the whole of this record we perceive no error for which the judgment of the court below should be reversed, and it is therefore affirmed.
Judgment affirmed.