
    Kane v. Stone Co.
    1. Work was performed in building a house, which, under the contract, was subject to the approval of an architect, who was in the employ of the owner of the property. Held:
    
    (1.) Such approval may be presumed from the presence of the architect at the time the work was done, and his failing to make objection.
    (2.) If such architect, acting in good faith, fails and refuses to approve the work in any form, the general rule is that the contractor cannot recover.
    (3.) Where the owner approves the work, such approval by the architect is dispensed with.
    2. A contractor for building a house, who has fairly endeavored to perform his contract, and has in fact substantially performed it, may, in an action on the contract, recover the agreed price for the work, less any damages the owner may have sustained by reason of the failure to strictly comply with the agreement.
    Error to the District Court of Cuyahoga county.
    
      TValdemar Otis, owner of a lot on Euclid avenue, Cleveland, desired to erect thereon a first-class business block, to be called Windsor block. He advertised for proposals, and Kane made a proposition to do the brick work at a specified price, and Scott made a proposition to furnish the stone and do the stone work for $5,800. Otis was satisfied with the prices, but desired to have all the masonry in one contract, and that with one person, and thereupon Kane, on March 1,1875, with the assent of Scott, contracted with Otis to furnish the stone and do the stone work for said sum of $5,800, and to do the brick work at the price proposed.
    The specifications for the stone work, signed by Kane, were as follows : “ All cut stone to be from the Independence and Amherst quarries, of a good clear quality. All belts, sill courses, window sills, imposts, pilasters, arches, window caps, bands, pilaster blocks, area copings, platforms and flagging, and all other parts colored light brown on the plans and elevations, shall'be of cut stone. The platforms and copings on the Sheriff and Euclid avenue to be I inches thick. All to be crandel dressed. All cut stone work above side-walk to be rubbed smooth with sand and water. After the work is all completed, clean off the entire work and point up all the joints ■with fine mortar. Anchor with iron anchors the posts to the walls and to each other as the architect shall direct. Perform all the necessary cutting for side-walk, and vault lights, sand for iron gratings (side-walk and vaults, lights and the area gratings are not included in this contract). The front and flank areas will be paved with brick. Check out the stone work wherever necessary to receive window frames on brick work. All the above work to be set in fine mortar and neatly painted. The contractor for all the above specified work shall, at his own cost and charges, furnish all the labor and materials of every description, and the best of their several kinds necessary for the erection and completion of the several parts in a good, workmanlike manner, in accordance with the true intent and meaning of the several drawings and specifications and to the satisfaction and acceptance of the architect.”
    
      At the same time Scott verbally agreed with Kane to furnish the stone and perform the work, according to the terms and conditions of the specifications, for $5,800, the sum he had proposed.
    At that time it was contemplated by all the parties— Otis, Kane and Scott — that buff stone would be used; but. James T. Wilson, superintendent of the Ohio Stone Co., induced Otis, with the assent of Kane and Scott, to substir tnte blue stone, the company furnishing to Otis the following guaranty:
    “ Cleveland, O., March 27, 1875.
    “W. Otis, Esq., City:
    “Whereas we have this day made a contract with Mr. Alexander Scott, to furnish him with the light blue Amherst stone for your building, to be erected on the corner of Sheriff and Euclid streets. We hereby guarantee to you, that said stone shall be equal in every particular in color and quality, and free from iron and all spots or discolorations, to the stone used in the Opera building on said Sheriff street, and all stone furnished by us to be subject to the inspection of W. Blythe, architect of said building.
    “ Ohio Stone Company, by J. T. Wilson, Supt.”
    Subsequently, the contract between the Ohio Stone Co. and Scott was, with the assent of Scott, assigned by that company to the Wilson & Hughes Stone Co., by which latter company the stones were furnished to Scott. The stone was substantially the same and in all respects equal to that owned by the Ohio Stone Co., and Otis, Kane and the architect, knowing by whom such material was furnished, made no objection. The stone work was done by Scott with the stone so furnished to him, and the agreed price, $5,800, was all paid to him in installments by Kane, as the work progressed, according to his contract, except the sum of $600, due October 1, 1875. Otis has been in the possession and use of the property since its completion. Aside from any question as to the quality of the stone and time and manner of doing the wrnrk, and acceptance by the architect, that amount ($600) was due on the stone work, October 1, 1875, from Otis to Kane, from Kane'to Scott, and from Scott to the Wilson & Hughes Stone Co. Scott assigned his claim to that company, and the company brought suit thereon against Kane for $600, with interest- from October 1, 1875, in the court of common pleas of Cuyahoga county, setting forth in the petition tire- contract and the assignment thereof, and alleging performance at the time and in the manner' agreed upon. Kane, who was required by Otis to resist the claim, in his answer, denied the allegations of the petition. On the trial in 1878, there was a verdict for $631.75, which was $55 less than the $600 with interest from October 1, 18751 Judgment was rendered on the verdict, which judgment was affirmed in the district court (2 Cleveland L. Rep. 290), and this petition in error was filed to obtain as well the reversal of the judgment of the common pleas as the reversal of the judgment of affirmance.
    A bill of exceptions was taken in the common pleas in which all the evidence is set forth. The plaintiff below was permitted, againshthe objection of the defendant below, to offer in rebuttal evidence as to the character of the materials and work. The bill also contains certain requests for instructions to the jury, the refusal to give such instructions, and certain parts of the charge. Blythe was the architect under whose immediate auspices the stone work was done.- Some of the stones placed in the building were not wholly free from iron, nor from spots or discoloration, and the work was not pointed up after its completion, but as it progressed. The evidence was in conflict whether in these particulars there had not been a substantial compliance with the contract on the part of Scott; it was' also in conflict whether he had not, in all other respects, literally complied with his contract; and it was also in conflict whether the architect had not, in effect, accepted and approved Scott’s -work and materials. ' No evidence was offered as to the value of the work or materials, but there was testimony as to the damages sustained by failure to strictly perform 'the agreement. The following letter from Otis to Scott was offered in evidence, and admitted without objection:
    
      “Waldemar Otis,
    Law and Real Estate Office, No. 6 Rouse Block,
    Cleveland, O., November 10, 1875.
    “ Mr. Alexander Scott,
    “ Dear Sir: — It seems proper for me to notify you that the reason that Mr. Kane cannot settle the balance nominally due' you, is that I make the claim that the guarantee given me by Mr. Wilson (as to the character, quality of stone, etc.) has not in important particulars been complied' with. Mr. Wilson’s company, by their secretary, gave me written notice that they have received an assignment- of your claim, and therefore I virtually owe them the amount, subject to whatever' damages may be due me for breach of guaranty.
    “ Very respectfully,
    “ W. Otis.”
    Having received this letter, Scott made no application to Blythe for a formal approval of the work. He regarded it as an approval, except as to the quality of the stone.
    With respect to the requests for instructions to the jury, the refusal of such requests, and the charge given; the following is all that appears in the record: “ The defendant, among other things, requested'the court to charge the jury : ‘Plaintiff having, in its pleadings, based its right to recover exclusively on contract, and on having carried out the contract, can only recover on proving to your satisfaction, that Scott did the work according to his contract, and .cannot in this action recover for work performed not according to contract.’ This charge the court refused to give, and defendant excepted.
    “ The defendant also asked the court to charge the jury: ‘ The parties having agreed that the work should be done to the satisfaction and acceptance of Blythe, the architect, then Blythe’s opinion, formed in good faith, is binding on the parties, and if in good faith Blythe was not satisfied with the work, and has not accepted it, and was of the opinion that the building was not completed, then plaintiff cannot recover for the $600 which it avers was only payable on completion of work.’ This charge the court failed and refused to give, and defendant excepted. But the court did charge as follows : ‘ In contracts where the materials are subject to the inspection and acceptance of any particular person, that inspection and acceptance is conclusive, unless there is some fraud or concealment practiced by the person furnishing the materials. If these stones were fairly and honestly exposed to the view of the architect, and he, after such inspection, permitted the stones to go in without objection, and there was no defect in the stone known to Scott, or which, by careful inspection, he could discover, and stones were accepted by the architect without objection, the architect could not wait until after the building is completed, and then- object to a particular stone, which had passed his inspection. But if Scott put in stone- which the architect had rejected, and thus deceived the architect, Scott would be liable, unless Kane knew that such stone had been used after being rejected. If Kane knew it or connived at it, then there is no liability of Scott to Kane on account of it, although Kane might be liable to Otis. If imperfect stone went into that building, with the assent or without objection on the par-of Kane, Kane knowing at the time that they were defective, no claim for damage can be sustained by Kane on account of defects in the stone, of which Kane had knowledge, even though he may be liable in damages to Mr. Otis on account thereof. ’ To all of which defendant excepted.
    “ The court, among other things, after chaiging the jury that defendant had withdrawn his claim for an affirmative judgment, that they must first find that plaintiff was a corporation, that' Scott had assigned his rights to plaintiff, and what was the contract between Scott and Kane, charged the jury, that they piust, to enable plaintiff to recover, find that Scott substantially complied with the contract.. £ Plaintiff must show that Scott substantially complied with the terms of the contract, and without he substantially completed the contract, plaintiff cannot recover. But this is not a technical rule. It don’t apply to immaterial points, but to the substantial requirements of the contract. If the work was substantially completed, then the plaintiff is entitled to recover so much as the materials and work were worth, after deducting all damages which' Kane sustained by reason of defects in the materials or work, and for which Kane would be liable to Otis. If Scott didn’t finish up the work, didn’t complete it, abandoned it before finishing it in a material part, then plaintiff cannot recover. If he did do all the work, but in an improper manner, then plaintiff can recover the reasonable value of such work, less any damage caused by the improper manner of doing it.’
    “To each and every part of this charge defendant separately excepted, and especially separately to so much thereof as charged the jury that under the pleadings in the case, plaintiff could recover, upon a substantial compliance with the contract, what the work done was reasonably worth, less any damage; and also excepted to so much as charged, that under the pleadings and contract plaintiff could recover without performing all the work required by the contract; and to so much as charged, that if Scott did all the work required by the contract, but in an improper mannex1, plaintiff could recover the reasonable value of the work done, less any damage caused by the way of doing the woi’k.
    “ The court further charged the jui’y, ‘ that if the work was pointed as the work progressed, although defectively and not after the work was all done, and although Blythe was not satisfied with the wox-k, and never accepted the building, plaintiff could recover the reasonable value of the work done, less any damage done therebj7.’
    “ To each and evei’y part of which the defendant separately excepted.”
    
      Mix, Noble cfe White, for plaintiff in error :
    The contract, admittedly, was not completed in four respects: the stone did not come from the quarx’y named in the contract ; the stone was not clear stone, but spotted and discoloxnd; the building was not pointed after “the work was all completed,” if evex1, and the work was not finished by the stipulated time.
    The petition alleged strict pex-formance of all the terms of the contx-act, and averx-ed that right to a judgxnent depended on this pex’formanee. The answer specifically alleged these breadles. The reply denied them. No application was ever made to amend the pleadings.
    We are not disposed to deny that if the pleadings had contained a quantum, meruit or quantum valebant count, plaintiff could have recovered upon a substantial completion of the work according to contract; that unimportant, accidental and unintentional deviations would not prevent recovery. We understand the rule is, if the contract is fully and exactly performed there recovery may be had either on a special count on the contract or on the common counts. If there are unimportant, accidental and unintentional deviations, recovery cannot be had on the contract, for it is not performed. Smith v. Brady, 17 N. Y. 186, 187; but may be had on a quantum meruit or quantum valebant count. Mehurin v. Stone, 37 Ohio St. 49, 56. When there are important and voluntary deviations, unwaived, there can be no recovery, either on the contract or on the common counts. No recovery can be had on a count on the contract alleging strict performance, where the contract has not been performed, without confounding all distinction between a special and a common count, or without doing violence to the language employed.
    The second request to charge (given in the statement of the case) was right. The distinction drawn in the charge given between work and materials was wrong. No good reason can be assigned for the distinction. If parties have a right to submit to an arbiter chosen by themselves, the question as to' whether materials accord with a contract, they have the same right to submit the questions whether work accords with the contract, or whether the work has been substantially completed, according to contract. The same principles which uphold the one covenant, uphold the other. We refer to a few of the many cases in which it will be seen that the distinction taken by the court finds no support in the authorities. McAuley v. Carter, 22 Ill. 53, 58; Wallace v. Curtis, 36 Ill. 156, 158 ; McAvoy v. Long, 13 Ill. 147; Coey v. Lehman, 79 Ill. 173, 176; Taylor v. Renn, 79 Ill. 181; Korff v. Lull, 70 Ill. 420, 422-3 ; Butler v. Tueker, 24 Wend 447, 449; Schenke v. Rowells, 7 Daly, 286, 289; s. c., 2 Abb. N. C. 42, 48, 49 ; Wyckoff v. Wyckoff, 44 N. Y. 143, 145 ; Baasen v. Bache, 7 Wisc. 516, 521; Hudson v. McCartney, 33 Wisc. 331; Palmer v. Clark, 106 Mass. 373, 389 ; Boston Water Co. v. Cray, 6 Met. 131, 168, et seq; McCanen v. McNulty, 7 Gray, 139, 141; Robinson v. Fiske, 25 Me. (12 Shipl.) 401; Merrill v. Gore, 29 Mc. (16 Shipl.) 346 ; O' Reilly v. Kuns, 52 Pa. St. 214, 217; Camden v. South Side R. R. Co., 14 Gratt. 302, 310, et seq.; Mercer v. Harris, 4 Neb. 77; Vanderwerker v. Vermont Central R. R. Co., 27 Vt. 130, 137 ; Worsley v. Wood, 6 T. R. 710; Clark v. Watson, 114 Eng. C. L. (18 C. B. N. S.) 277; Grafton v. Eastern Railway Co., 8 Exch. 699; s. c., 22 Eng. L. & E. 527; Glenn v. Leith, 22 Eng. L. & E. 489; Brown v. Overbury, 34 Eng. L. & E. 610; Ranger v. Great Western Railway Co., 5 H. of L. Cas. 72, 106, 107; Monongahela Nav. Co. v. Fenton, 4 W. & S. 205, 213; Faunce v. Burke, 16 Penn. St. (4 Harris) 469, 479-80; Fox v. Railroad, 3 Wall. Jr. 243; Zaleski v. Clark, 44 Conn. 218.
    
      Alex. C. Cuskey, for defendant in error :
    Tbe court of common pleas did not err in refusing to give the first request to charge by defendant below (given in the statement of the case). The request was in direct conflict with Goldsmith v. Hand, 26 Ohio St. 101.
    Did the court err in refusing to charge the second request made by defendant below ? Clearly not. The request made covers the completion of the entire building, and asks the court to say that if the architect was of the opinion that the building was not completed, then plaintiff could not recover for the cut stone work, no matter how perfectly that feurt of the building might have been completed. The request makes no allowance for had faith or unreasonable action on the part of the architect.
    The contract between plaintiff and defendant in error did not make the pay of defendant in error, subject to or dependent upon the architect’s opinion as to the completion of the building, but only his work (the cut stone work) was to be completed to the satisfaction of the architect, and whenever tlie building was finished (good, bead or indifferent), defendant in error was entitled to his pay, provided his world was completed to the satisfaction of the architect.
    We claim that the charge of the court, as to the supervision of the architect, is right. Any other rule than that laid down by the court, would work gross imposition and fraud.
   Okey, J".

We are unwilling to disturb the judgment on the ground that the verdict was not supported by sufficient proof. The rule upon the subject is correctly stated in McGatrick v. Wason, 4 Ohio St. 566. Nor do we find there was such abuse of discretion with respect to the order in which the proof was received, as requires a reversal. The only questions which call for consideration in this opinion, are with respect to the refusals to instruct the jury as requested and the instructions given.

The specifications required the materials to be furnished and the work done to the satisfaction and acceptance of the architect.” To this Scott orally assented, and lie assented in the same way to the guaranty, in which it is agreed that all the stone should “ be subject to the inspection of W, Blythe, architect of the building.” In the request for instructions in relation to such acceptance, we think the law was not stated too favorably for the defendant below; and if such acceptance had not been dispensed with, the charge should have been given. According to some authorities, the law is more favorable to him. Wliart. Cont. § 594; cf. Goldsmith v. Hand, 26 Ohio St. 101. But hero Blythe was in the employ of Otis; he was Otis’ agent; and consequently an acceptance by Otis, the owner of the building, would dispense with the necessity of any acceptance by Blythe. We hold that if it be true that Blythe did not accept and approve the work and materials, Otis dispensed with such action oil his part by his letter to Scott, in which he virtually accepted the work, reserving only his objection to the quality of the stone. Mehurin v. Stone, 37 Ohio St. 49, is not to be regarded as in conflict with the view we take of this case.

Formerly there could be no recovery on a contract like this, unless tbe agreement was strictly performed. But the rigid rule upon this subject has been relaxed, and now where the builder acts in good faith there may be such recovery, although there may not have been literal performance. Goldsmith v. Hand, supra; Mehurin v. Stone, supra. What is essential and indispensable to a recovery is substantial compliance with the agreement. This is not a suit on a quantum meruit, but an action on the contract. No evidence was offered as to the value of the work or materials, but evidence was offered as to damages that may have been sustained by the failure to strictly comply with the agreement. The action is properly prosecuted on the contract, and the measure of recovery is the sum stipulated in the agreement, less the damages sustained by a failure to strictly perform. Nolan v. Whitney, 88 N. Y. 648. As already stated, the evidence is in conflict with respect to the quality of the stone. Moreover, the stipulation that the stone should be “ free from iron and all spots and discoloration,” must be construed in view of the uses to which the ,material was to be appropriated. Perhaps no lot of stone of the kind referred to is so perfect as to be wholly free from iron and spots. The rule in contracts of this sort is stated in Cullen v. Bimm, 37 Ohio St. 236. Besides, the jury deducted $55 from the sum for which a verdict should have been rendered in case of strict performance, and we may fairly say that this was because of iron or spots in the stone. We are by no means clear that injustice has been done in the verdict rendered.

Our conclusion is, that the learned judge who presided at the trial, was mistaken in some respects as to the law applicable to the case, but that, under the circumstances, his action was not so far prejudicial as to afford ground of reversal.

Judgment affirmed.  