delivered the opinion of the court.
It wаs contended by appellee in the trial court, as here, that the suit of appellant could not be maintained because:
1st. He had failеd to obtain a certificate of the architect, a condition рrecedent to right of payment, as provided by the contract, and hаd not sufficiently excused such failure.
. 2d. He had not complied with the provisions of section 35 of the mechanic’s lien act.
The trial court, acting uрon one of these grounds, and it would seem from the bill of exceptions to have been the second, held that appellant could not recover.
We have, then, to determine whether the jury would have been warranted by the evidence in a finding that the facts excused appellant from obtaining the architect’s certificate, as a condition precedent to payment, and also warranted in a finding that there had been a waiver of the right to demand a statement under oath, as provided by the statute.
There was evidence from which the jury might have found that the work speсified in the contract was completed within the time fixed by the contraсt, and that there was no valid ground or reason for the refusal of the architect to give a certificate for the balance due. In such cаse it is for the jury to determine whether the refusal of the architect to issuе his certificate is so far fraudulent, i. e., ungrounded and capricious, as tо be no bar to the contractor’s right to payment. Badger v. Kerber,
The mere refusal to issue the certificate upon grounds which were known to be fictitious and without foundation, might be found to constitute a fraudulent refusal. Snell v. Brown,
It has been held in a number of cases, that a failure to comply with the statute requiring a statement under oath of the number and names of sub-contractors, mechanics or workmen, etc., with amounts due them, etc., as provided by section 35 of the meсhanic’s lien act of 1887, will bar a right to recover in assumpsit for labor or material, as well as right to enforce a lien. Gilman v. Courtney,
But it is also held that thе owner’s right to such statement may be waived so as to permit recovery in action at law without the furnishing of the statement. Floyd v. Rathlege, supra; Burnside v. O’Hаra,
If there is evidence here tending to show such a waiver, and from which a jury would be warranted in finding that there was in fact a waiver, then the issue should havе been left to the jury for determination.
Two facts appear in the evidence which bear upon this issue, viz.: the former certificate issued by the аrchitect without having in fact obtained any statement under oath by the cоntractor; and the tender of a certificate for $1,200 without requiring such statеment. The jury might have found from the evidence that the former certificate was issued after all work had been completed under the contraсt. No liabilities for labor or material could then have been afterward incurred by the contractor for the work done under the contract. By its recitals the certificate admits a furnishing of the required statement at that time, although none was in fact made. This we think might support a finding by the jury that the statemеnt had been thereby waived. The tender of the certificate for $1,200 might be held, as a matter of fact, to have constituted • a waiver to any statement, at least as to a right to payment of the $1,200. Nor do we think the contention tenable that by refusal of the tender the waiver, was necessarily thereby withdrawn.
The effect of each of these items of evidence рresented a question for the determination of the jury, and should have been submitted to them. The judgment is therefore reversed and the cause remanded.