
    Patrick B. McEntyre, Resp’t, v. Charles A. Tucker, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed October 2, 1893.)
    
    1. Appeal—Case.
    A certificate stating that “The annexed case contains all the evidence bearing upon the exceptions given upon the trial ” is sufficient to warrant the appellate court in reviewing the facts.
    2. Contract—Architect’s certifcate.
    Where a building contract expressly makes all payments conditional on certificates of the architect that the work has been done to his satisfaction, certificates signed with the name of the architect by bis assistant and delivered by the latter to the contractor, are not sufficient.
    '3. Same—Ratification.
    Payments made upon the presentation of such certificates of sums called for by the contract as the building reached certain stages, do not amount to a ratification of the assistant’s acts or a waiver of the owner’s right to require the final certificate of the architect himself on the completion of the work.
    4. Same.
    Variations and omissions in matters of ornamentation may be material, and constitute a valid objection to the work which will justify a withholding of the certificate.
    Appeal from a judgment entered in favor of the plaintiff upon the report of a referee.
    
      Henry G. Atwater, for resp’t; Dill, Chandler & Seymour, for app’lt.
   Bookstaver, J.

This action is broug_t to recover a balance ■claimed to be due on a building contract, and for extra work. The first question to be determined is whether or not the certificate annexed to the case is sufficient to warrant the court in

reviewing the facts on appeal. It is in the following words: “ The annexed case contains all the evidence bearing upon the exceptions given (taken) upon the trial.” This is very different from the certificates in Dibble v. Dimick, 53 St. Rep., 225, and Hyman v. Friedman, 45 id., 636; aff’d 138 N. Y., 639 ; 53 St. Rep., 929; in both of which the word testimony was used in place of evidence, which is a word of very different import. Testimony, strictly speaking, means the evidence of a witness given under oath, and even when used in its widest sense it still has reference to some living agent as its author; while evidence includes not only the testimony of witnesses, but everything else which .is legally submitted to a court as a means of ascertaining the truth of any alleged matter of fact under investigation, as deeds, letters, contracts, etc. Consult Webster Imp. Dic.; Burrill’s L. D., ad his verbis. Hence the necessity of the use of the broader word prescribed, as was well illustrated in the case first cited, where a number of exhibits were left out of the case, and yet it contained a certificate as to all the testimony being in. The usual form is that the case contains “ all of the evidence material to the question sought to be reviewed.” Bay lies on Hew Trials and Appeals, 573. In Davis Sewing Machine Co. v. Best, 50 Hun, at p. 79; 23 St. Rep., 877, it was said: “ Where a question of fact is sought to be reviewed it should be stated in the case that it contains all the evidence, or all bearing upon the question of fact sought to be reviewed.” The certificate under consideration substantially complies with this rule. The questions of fact before the court for review arise because of the refusals of the referee to find as requested by the defendant and the exceptions taken to such refusals, and the certificate conforms to what was said by Macomber, J., in Clark v.Swift, 14 N.Y. Supp., 61; 38 St. Rep., 129: “Under § 993, of the Code of Civil Procedure, it is the duty of the party where there is conflicting evidence to request a finding in accordance with the contention of the party, and in case of its refusal to find such request it would be the duty of the appellate court to look carefully into the evidence and to determine whether or not the conclusion reached by the referee was correct,”

“ Section 992 of the Code of Civil Procedure in terms precludes exceptions to findings of fact as such ; but § 993 declares a finding of fact whicli is without any evidence tending to sustain it, or a refusal to make any finding reasonably requested, to be a ruling upon a question of law, and subject to exception as such under § 992. From which it results that the only mode of reviewing a finding of fact of a court or referee as being against the weight of evidence is by means of a request to find and an exception to the refusal to find as requested.” Hugg v. Shank, 17 N. Y. Civ. Pro., 128; 23 St. Rep., 312.

But if there were no statement that all the evidence upon the question sought to be reviewed was contained in the case, it would still be open to the court to determine that there was no evidence to support any finding of fact duly excepted to. Davis Sewing M. Co. v. Best, supra ; Halpin v. Phenix Ins. Co., 118 N. Y., 172; 28 St. Rep., 788, where it was said: “A statement that all the evi■denes given on the trial is contained in the case is not essential to present for review in this court -a finding alleged to be without-■evidence to sustain it.” “ The appellant is therefore correct in his claim that the finding excepted to is properly before the court-for review, and we must assume that all the evidence introduced on -the trial -and bearing upon the fact of the occupancy has been -inserted in the ■case.’" ->

We therefore think we are bound to review the facts as presented by the case and to determine whether or not the referee’s - findings are in .accordance with them.

The complaint -sets up the -contract between the parties and the •order -of payment, and that every payment was conditional upon -a certificate of the-architect that the work had been done to his-satisfaction, -alleges that certain extra work had been done and that the -architect had certified that all of the work had been dónete his .satisfaction, and then sets out the balance due less certain payments ¡made by the defendant to certain material men. The -amended answer denies the value of the work, and also that the-certificates had been -obtained from the architect of that he had certified that the work had been done to his satisfaction, as required-by the contract, and on the other hand alleged that the-work was -defective in specified details and inferior in quality, and then attacks the validity of the certificates made by one-Smith, -an assistant of the architect, and not by the architect him- - self-or by his authority. A second defense is also setup which, it is not here necessary to notice.

The contract is very strong along the line that all of the work ■should be done to the satisfaction and under the direction of the = .architect and that his certificate should be essential to a payment, and it makes him the sole arbiter as to the regularity, propriety and value of the work, and consequéntly brings the case within Glacius v. Black, 50 N. Y., 145. Where a person is made the ■■ .sole and only arbiter of a contract, his decision is necessary be- ■ fore an action at law may he maintained. And the chief question in this case is as to whether or not the certificates signed “George • A. Freeman, Jr., by W. Holman Smith ” are such certificates as the contract called for, and whether or not supervision by the ■ architect and the production of certificates signed by him or by " his authority had been waived, and that of his assistant and cer- ■ tificates given by him were accepted in lieu. As before stated,. the contracts were strongly drawn so as to secure the super-vision - and certificates of the architect, yet respondent contends that all1 this was waived because the architect did bat little, if any, supervision of the work to appellant's knowledge, and that payments-• were made on the assistant’s certificates in the form above stated... But the payments that were made were to be made by the terms-of the contract when certain stages on the buildings were reached, . and these stand on a different footing from the subsequent payments which were only to be made when the buildings were completed to the satisfaction of the architect. It might well be that-the defendant was content to pay, and believed lie should make these payments when called for by the contract, and jmt in no- . sense waive his right to the final completion according to the terms of the contract. The later certificates were not paid be- ■ cause, as defendant then claimed, the work was not properly done, and also because the certificates were not proper or valid ones; -and he insisted by letters and telegrams that the architect, and not his assistant should act in the premises. As to these later certificates, the defendant promptly declined to receive or act on them, insisting on his right to the advice and judgment of the architect himself, thus asserting the well known principle delegatus ■non potest delegare.

The plaintiff himself testified that about the 15th or 16th of ^September, 1882, he took the certificates after those calling for "the first four payments and handed them to the defendant, who looked them over and handed them back, refusing to take them. The defendant said he would take advice, and subsequently the '.plaintiff and defendant had a consultation with their counsel. As the claim in this action is based on these subsequent certificates, the evidence that the assistant acted as superintendent under the •architect of the buildings isnot suffi cient, in our opinion, to warrant a finding of fact that the defendant acquiesced in or waived the final certificates of the architect himself. On the contrary, he promptly refused to pay the amounts called for by them. ‘There is no evidence of any ratification, consent or acquiescence on the part of the defendant in the acts of the architect’s assistant.

But again, there is a failure of any satisfactory proof that the architect in any way authorized the giving of the final certificates by his assistant. He himself testified : “ I did not know anything about the others (i. e., the later certificates) being given. I never in any instance authorized Mr. Smith to sign my name to those certificates. I can only state that I knew nothing about the final certificates being given. I knew before they were given that Smith had given out some of these certificates. I knew McEntyre had money as the work went on, but I never knew about the final certificates, and I never authorized Mr. Smith to sign any certificate for me ” ; and this he repeats emphatically. Hence there was an entire failure of compliance with a condition precedent to requiring payment, and we find no evidence which would lead us to the conclusion that the condition had been waived by the defendant. Certainly the payments made under the first four certificates under the circumstances do not warrant such a result. Even if defendant had full knowledge that these first certificates were given without the architect’s authority, this would not warrant such a conclusion. Mere payment under such-circumstances, even without the production of any certificate, would have been no waiver of defendant’s right to require subsequent certificates, which he certainly did. Barton v. Hermann, 11 Abb., N. S., 378; Haden v. Coleman, 42 Supr. Ct., 256.

We also think the objections to the work as done by plaintiff were well founded, and the demand for the certificates was not a mere pretext. The referee has found a considerable number of distinct variations, changes f-nd omissions from the designs, some of which it is true are not of much importance or of great-value, but others are more material, as for instance the style of ornamentation, etc. Eespondent contends that although the ornamentation in the way of panelling, railings and cornices was not as elaborate as required by the specifications, yet that is not a matter of substance, and that ornamentation is merely added to and not a part of the house, quite forgetting that any true or tasteful ornamentation must at least appear to be a part of the construction and not a mere addition. It is quite true such a. bouse might as well protect one from the elements as a more highly ornamented one, yet just in the ornamentation is a great part of the pleasure many cultivated people take in their dwellings, and one has a right to get what he bargains for and what-the party of the second part agrees to deliver, or there would be no force in contracts. As all these questions are fairly raised in the case, we think the judgment should be reversed and a new trial ordered, costs and disbursements of this appeal to the appellant to abide the event.

Bischoff and Pryor, JJ., concur.  