
    BROWN, MANNING & COMPANY vs. DORA G. BOKER et al.
    Mechanics’ Riens; Cross-birrs.
    1. A cross-bill to recover damages for defective work cannot be filed in a suit to enforce a mechanics’ lien, but the Court may reserve to the defendant the right to proceed at law.
    2. In affirming such a decree this Court, in view of the lapse of time since the filing of the hill, annexes as a condition of such affirmance that limitations shall not be pleaded to the action at law if the same be brought within a stated time.
    In Equity.
    No. 10,986.
    Decided July 9, 1891.
    The Chief Justice and Justices James and Cox sitting.
    Appear from a decree on a bill filed to enforce mechanics’ liens.
    
      Decree affirmed with modifications.
    
    The pacts are stated in the opinion.
    Messrs. W. J. Newton and F. J. RavEnder for complainants.
    The contract provides that Brown shall build the house agreeably to the plans, drawings, &c., to the satisfaction and under the direction of Read & Kirkus, Architects; and that should any dispute arise respecting the true construction or meaning of the drawings and specifications, their decision shall be final and conclusive.
    The specifications are practically to same effect.
    The architect accepted and passed the work.
    Mr. and Mrs. Boker moved into and accepted the house, made no request for any changes or alterations and no complaint until suit was brought.
    The law, under these circumstances, is well settled.
    When it is provided in a building contract that the decision of an architect shall be final on all questions of difference arising under the contract, his decision that the work is completed in conformity with the terms of the contract is con-elusive until impeached for fraud. Downey vs. O’Donnell, 86 Ill. 49. Wyckoff vs. Meyers, 44 N. Y. (5 Hand) 143.
    Where the parties to a building contract agree upon an architect, and stipulate and agree to rely upon his judgment, skill, and decision as to the character, amount and value of the work to be done, they must abide by his judgment and decision, or impeach it on the ground of fraud, mistake, undue influence, or some other good cause. Board of Education vs. Shaw, 15 Kansas, 33. Mercer vs. Harris, 4 Neb. 77.
    If a party contracting for work of a particular style, pattern and finish, accept anything different, he is bound for the contract price, or if his acceptance is so qualified, for the value. Neville vs. Frost, 3 E. D. Smith (N. Y.) 62. If accepted and kept, the contract is consummated as though originally agreed to be so fulfilled. Ely vs. O’Leary, 2 E. D. Smith (N. Y.) 355. Francois vs. Ocks, Id. 417.
    Knowingly acquiescing in a deviation from a contract is a waiver of its strict performance. Pike vs. Nash, 3 Abb. (N. Y.) App. Dec., 610. Garrison vs. Dingman, 56 Ill. 150. Waters vs. Harvey, 3 Houst. (Del.) 441.
    Mr. Wm. A. McKenney, and Messrs. Gordon & Gordon for defendants.
    In this case there never was a formal acceptance of the ‘ work ; the defendant went into possession by agreement, and after having paid nearly the contract price the defects and deviations were not discovered until after the defendant went into the house.
    It is well settled law that under similar circumstances no right is waived by takifig possession. Hartufee vs. City of Pittsburg, 97 Pa. St., 118; Mitchell vs. Land Co., 3 Iowa, 209; Young vs. White, 5 Watts, 460-2; Smith vs. Brady, 17 N. Y., 173.
    That ’ the delivery of the final certificate to the builder, under the circumstances of the case, was an ineffctual delivery, is clear in the light of the authorities.
    An architect is not permitted to bind the defendant by a final certificate where there has been a substantial deviation from the contract. Glacius vs. Black, 50 N. Y., 150; Johnson vs. DePeyster, 50 N. Y., 666.
    Fraud or mistake vitiates a certificate which is otherwise conclusive. Wyckoff vs. Myers, 44 N. Y., 145; Glacius vs. Black, 50 N. Y., 153;
    That Mrs. Boker had a perfect right to contract for the building of a house according to her desires and fancy, and of such material and construction as best suited her, no one will pretend to deny. And a builder who' enters into a contract to erect such a house will be held to a strict performance. Smith vs. Brady, 17 N. Y., 173; Dermott vs. Jones, 2 Wall, 1.
    The doctrine of Smith vs. Brady (supra), has been somewhat modified in cases where there has been a substantial performance, and where there are only slight deviations. Yet the courts are careful to hold that ‘ ‘ cases of fraud or gross negligence may be an acceptance.” Hayward vs. Leonard, 7 Pick., 186; Cullen vs. Sears, 112 Mass., 299. Nolan vs. Whitney, 88 N. Y., 648; Bridge Co. vs. Bridge Co., 83 Pa. St., 517.
    The same principal has been substantially announced by this court in a recent case. Beha vs. Ottenberg, 6 Mackey, 348.
   Mr. Justice Hag-nrr

delivered the opinion of the Court: This is a bill in equity to enforce mechanics’ liens filed by Brown the general contractor, and Manning & Whiting, subcontractors, for work claimed to have been done on a dwelling built for Mrs. Boker, the defendant. Although many complaints had been made as to the manner in which the work had been done, Mrs. Boker entered into possession of the house one month in advance of the time the contractor was bound to deliver possession ; and this circumstance, with others are relied upon by the complainants as evidence that she finally acquiesced in the sufficiency of the work, and had accepted it and agreed to pay for it. These differences between the parties are the subject of a great deal of testimony ; some of which was given by experts who visited the house at the request of the defendant, and' who found fauF with many features in the execution of the work.

The case was carefully examined below and the court made a decree reducing by a sum of ninety odd dollars the claim of Brown, the contractor, and allowing in full the claim of Manning & Co., the subcontractors for their work as plumbers.

One of the defences relied upon by the complainants was, that by the terms of the contract and specification, the architect was charged with the duty of determing whether the work was properly performed according to the contract, and that his certificate to that effect given in this case should be final. There are some peculiar expressions used in this part of the contract which make it more than doubtful whether this would be a sufficient response.

We have given a thorough examination to the case, and are of the opinion that justice was done by the decree below, and that it should be affirmed. But in the course of the pleadings Mrs. Boker filed a cross bill in which she averred these irregularities and imperfections in the work, insisted she had been much inj ured by them and claimed the right to recover damages in that action against the complainants. The cross bill was demurred to, and' the demurrer sustained, with leave to Mrs. Boker to institute an action at law to recover any such damages.

In affirming this judgment, we think there is enough in the case to render it proper to make a similar reservation. We will amend the decree below by expressly reserving the right to Mrs. Boker to bring an action at law within a short time, if she sees fit to do so; but as a considerable interval has elapsed since the inception of this transaction, and the Statute of limitations might otherwise apply to the defendant’s claim, we will decree that if this suit is brought within three months the Statute of limitations shall not be pleaded to the .action by the complainants.

The decree will read in this way: “This cause coming on to be heard, and being argued by counsel, and the proceedings having been by the court considered: It is thereupon this ninth day of July, 1891, adjudged, ordered and decreed, that the decree of the equity court in this cause, passed on the nth day of February, 1889, be and the same is affirmed, with a.privilege to the defendant to bring an action at law to enforce .the claim for damages set up by her in her cross bill; and this affirmance is upon the condition that the defendants to such suit shall not have the right to plead the Statute of limitations to such suit, provided the same be commenced within three months from this day.”

There is so much pressing upon us at this moment that we are not prepared to go into a particular discussion of the testimony, and we do not .think such an examination would be profitable or proper in view of the prospect that the same questions may be presented in the suit at law.

Decree affirmed with amendments as 'above.  