190 A.D. 581 | N.Y. App. Div. | 1920
Lead Opinion
The performance of the work by the plaintiff according to the contract except a small part waived by the defendant, was found as a fact by the referee on conflicting evidence. Without reviewing the evidence in detail, it is sufficient to say that it does not so preponderate in favor of the defendant as to require a reversal of the finding. The power of an appellate court to review the facts should-be sparingly exercised, and only in cases where the finding is plainly against the weight of evidence. A printed record is a poor substitute for oral testimony of living witnesses heard by the trier of the fact in the presence of watching counsel.
On the subject of the architect’s certificate there remain two questions that require examination.
The contract required that the work should be performed under the direction and to the satisfaction of the landscape architect or his deputy, acting for the purpose of the contract as agent of the owner, and that when the work called for and specifically ordered should have been completed, and such completion should have been certified by the landscape architect, and all the terms of the contract should have been complied with, eighty per cent of the total amount of the work done would be paid and the remaining twenty per cent would be retained for thirty-three days after all the provisions of the contract should have been complied with.
The contract, therefore, requires the architect’s certificate as a condition to the final payment, which is sought to be enforced in this action. The plaintiff did not produce the architect’s certificate and the court, following the allegation of the complaint, found that it was wrongfully, willfully and without just cause withheld, and that the plaintiff might recover upon proof of substantial performance without obtaining the certificate.
The finding that under these conditions the certificate was withheld wrongfully, willfully and without just cause was warranted. (Nolan v. Whitney, 88 N. Y. 649; Thomas v. Stewart, 132 id. 580; Mac Knight Flintic Stone Co. v. Mayor, 160 id. 72; Whiteman v. Mayor, etc., 21 Hun, 117; Thomas v. Fleury, 26 N. Y. 26; Bowery National Bank v. Mayor, 63 id. 336.) These cases seem to establish the proposition that where the plaintiff has performed the work so as to entitle him to the certificate, the refusal of the architect to give the certificate is unreasonable and the plaintiff is excused from its production. The case of Thomas v. Fleury (supra) is in principle very like the case at bar, for it holds that as the direction of the defendant was such as to require the plaintiff to depart from the terms of the contract, the
The fact that the defendant refused to make further payments unless the plaintiff would plow up the road and rebuild it is not specially found by the referee, but his opinion shows that it was an element in his decision. I think that the finding should be made in terms, although perhaps it might be treated as evidence to sustain the finding that the certificate was unreasonably withheld.
The departure of the authorities from the strict application of the rule that as the architect is the arbitrator his determination cannot be impeached except for fraud, misconduct or palpable error on the face of the certificate (See Sweet v. Morrison, 116 N. Y. 19; Matter of Wilkins, 169 id. 494) is due, I think, in part at least, to the fact that in these contracts the architect is employed and paid by the owner. The tendency of the courts, therefore, is to confine the rule that his determination is conclusive between the parties as closely as possible to the wording of the contract. The result is that where the facts show that the duty rested upon the architect to issue the certificate, his failure so to do will be held to be unreasonable and the contractor relieved from the condition that it must be obtained. It is a rule growing out of the practical difficulty of the architect’s serving two masters, and the milder word “ unreasonable ” is under the circumstances preferred by the courts to the words “ constructive fraud.”
Article IV of the contract, upon which the counterclaim was founded, provides that “ Should the contractor at any time refuse or neglect to supply a sufficiency of properly skilled workmen, or of materials of the proper quality, or fail in any respect to prosecute the work with promptness and diligence, or fail in the performance of any of the agreements herein contained, such refusal, neglect or failure being certified by the Architect, the Owner shall be at liberty * * * to provide any such labor or materials; * * * and if the Architect shall certify that such refusal, neglect or failure is sufficient ground for such action,” the owner may terminate the contract and complete on the contractor’s account. ■:
This action was commenced on May 10, 1917. On May
The judgment should be affirmed, with costs; and this court makes the additional finding that during the month of April, 1917, and after the plaintiff had agreed to make certain repairs as a condition to receiving the final certificate, the defendant refused to make further payment unless the plaintiff would plow up and rebuild the whole road.
Jenks, P. J., Mills and Rich, JJ., concur; Putnam, J., reads for reversal.
Dissenting Opinion
This is an instance where under the finding of “ substantial performance ” the learned referee has sought to make for the parties a new and different agreement from this written contract to build a concrete road. It contained minute and explicit provisions for excavation and removal of loam and vegetable matter to a depth .of twenty-four inches, with a filling to a subgrade laid evenly six inches below the top, which was a completed surface grade, formed from a layer of Peekskill gravel to be five and three-quarters inches thick after rolling.
In December, 1915, this work was suspended by consent, the top courses not yet being finished. There was minor work done about a court and garage in September, 1916. In the following winter, defects appeared, so that in April, 1917 (about the eighth), the parties met with the architect and
Acting on this, defendant, on April thirteenth, sent plaintiff his check for $4,000.
Plaintiff, however, did nothing. He even countermanded his order for Peekskill gravel.
There was a further interview on the road, when borings were made and excavations had, showing alleged deficiencies and irregularities in the depths and in the materials found. This was after May tenth, as plaintiff finally admitted, when recalled on rebuttal. Besides plaintiff and defendant, there were present Bushnell, the engineer, Harrington, the surveyor, and Sargent, the architect’s assistant. After making many borings it was suggested that the road should be plowed up, although defendant held out to plaintiff that if he furnish the surface material, with oil to help bind it, it might be satisfactory. Plaintiff then stated that he would have to consult his lawyer. But again he refrained from doing anything to complete his job.
This action had then been begun. On the next day the architect sent to plaintiff a formal default notice as the contract provided; also concurrently issued to defendant the usual certificate by which was attested that such default was sufficient ground for terminating plaintiff’s employment. Notwithstanding the positive terms of the contract, this certificate was not admitted and was ignored in passing on the evidence.
Such efforts of a trial court to soften the conditions of a building contract (Zimmermann v. Jourgensen, 70 Hun, 222; affd., 144 N. Y. 656; Spence v. Ham, 163 id. 220; Witt v. Gilmour, 172 App. Div. 110) have uniformly been disapproved.
I vote to reverse, and to send back the case for retrial. Judgment affirmed, with costs, and additional finding made.