
    Ashley v. Henahan.
    
      Building contract — Substantial performance — Additional work— Provisions of contract as to — Provisions of, as to acceptance m writing by architect — Waiver, proof as to.
    
    1. The general rule is, that one who seeks to recover on a contract must show substantial performance on his part, and this rule applies to a “building contract” as to any other. But slight omissions and inadvertences should be disregarded. Where there has been an honest effort by the contractor to perform, and not a willful omission, substantial performance is all that is required.-
    2. The plaintiff below entered into a written contract with the defendant to make the excavations and construct the foundation walls, of a building she was about to construct for a certain sum. It provided for payment from time to time on estimates made by the architect, and that the final payment should be made in a certain time after the contract is completely finished, on the certificate of the architect in writing, that the work has been done to his satisfaction. Held: That without this certificate, or a waiver of it by the owner, no recovery can be had.
    3. The contract provided that the contractor should make the excavations and put in the stone foundations of the proposed building, according to the plans and specifications, including all labor and material incident thereto. In order to make the excavations of the required depth, which was some 22 or 23 feet, it became necessary to underpin á house standing on the line of one of the foundations, and to use a certain quantity of lumber for the purpose of sustaining the sides of the trenches. Held: That the under-pinning of the house and the lumber used in the trenches, are a part of the work to be done included in the terms of the contract; and that a recovery therefor cannot be had on an implied obligation to pay what it is reasonably worth.
    4. The contract contained the following clause: “the contractor shall make no claim for additional work unless the same shall be done in pursuance of an order from the architect, and notice of all claims shall be made to the architect in writing within ten days of the beginning of such work.”
    
      Held: That under 6his provision no recovery can be had for work in addition to that provided in the contract, where the work done is necessary to the performance of the contract, unless the work was done in pursuance of the order of the architect, and notice of the claim be given to him, in writing as required, unless waived by the employer.
    5. Such stipulation being for the benefit of the employer, proof of a waiver must either be in writing, or by such olear and convincing evidence as to leave no reasonable doubt about it.
    (Decided June 21, 1897.)
    Error to the Circuit Court of Lucas county.
    By a petition filed in the court of common pleas of Lucas county, the plaintiff, Michael Henahan, sought to recover of the defendants, on two causes of action, the sum of $3,708.21.
    By his first cause of action, he asked to recover the balance due him on a contract made between him and the defendants, whereby he was to receive $9,365 for furnishing the labor and material for making the excavations and putting in the foundations of a building in Toledo, the defendants were then about to construct. The alleged performance on his part, the receipt of $9,000, and asked judgment for the balance.
    In his second cause of action, he asks to recover on a quantum meruit, $3,343.20 for underpinning a building, at the request of the defendants, on the line of one side of the foundations; and, also, by like request, for lumber used in supporting. the trenches, and left in by the direction of the defendants; and for some minor matters not material here on the question of error to be considered.
    Emma J. Ashley, the real party in interest, answered, averring that on June 20, 1892, the plaintiff and • the defendant entered into a written contract, a copy of which she attaches to her pleading, and denies that any other contract was made or existed between them, touching the subject of the plaintiff’s suit; she denies the completion of the contract by the plaintiff, or that anything is due him, beyond what she has paid. She also claims damages for the non-completion of the work.
    The answer to the second cause of action, so far as material here, is as follows:
    II — For answer to plaintiff’s second cause of action, defendant admits that “in the course of erection and construction of said foundation aforesaid, it became necessary to pi operly protect said work, to furnish labor and material to hold up and underpin the building on the west side of said lot, which was built on the line and with foundation walls of the depth of eight feet or thereabouts; that the walls of defendant’s building extend about twenty-three feet below the street level and that in excavating the trenches for said walls, plaintiff had to penetrate through walls of quick-sand;” and defendant admits that plaintiff excavated beneath said building- on the west side and put in said underpinning of stone work.
    But defendant denies that said work was very difficult and dangerous. Defendant denies that plaintiff did said work at the request of this defendant. Defendant denies that plaintiff was obliged to use any labor or material for said work which he did not agree to supply in the annexed agreement marked “Exhibit A.” Defendant says that said A. B. Sturges, architect, gave no order for any additional work, nor was any claim in writing for such work ever presented to said architect.
    In a reply filed, issue is taken upon the averments of fact contained in the answer, except as to the making of the contract attached to the answer as an exhibit, and the payment of $9,000 to him by the defendant.
    The contract attached to defendant’s answer, was drawn by the architect and signed by the parties. It is in the form now in general use, adopted by the American institute of Architects and National Association of Builders. The parts relevant to the questions of error to be considered are as follows:
    “The contractor shall and will, well and sufficiently perform and finish, under the direction, and to the satisfaction of A. Burnside Sturges, architect (acting as agent of said owner), all the work included in the excavating, grading, foundations, stone walls, etc., agreeably to the drawings and specifications made by the said architect, and signed by the parties hereto, (copies of which have been delivered to the contractor), and to the dimensions and explanations thereon, therein and herein contained, according to the true intent and meaning of said drawings and specifications, and of these presents, including all labor and materials incident thereto, and shall provide all scaffolding, implements and cartage necessary for the due performance of the said work.”
    “3. Should any alterations be required in the work shown or described by the drawings or specifications, a fair and reasonable valuation of the work added or omitted shall be made by the architect, and the sum herein agreed to be paid for the work according to the original specifications, shall be increased or diminished as the case may be. In case such valuation is not agreed to, the contractor shall proceed with the alteration, upon the written order of the architect, and the valuation of the work added or omitted, shall be referred to three (3) arbitrators, (no one of whom shall have been personally connected with the work to which these presents refer), to be appointed as follows: One by each of the parties to this contract, and the third by the' two thus chosen; the decision of any two of whom shall be final and binding, and each of the parties hereto shall pay one-half of the expense of such reference.”
    “9. The contractor shall make no claim for additional work unless the same shall be done in pursuance of an order from the architect, and notice of all claims shall be made to the architect in writing, within ten days of the beginning of such work.”
    “13. And it is hereby mutually agreed between the parties hereto, that the sum to be paid by the owner to the contractor for said work and materials, shall be nine thousand three hundred and sixty-five dollars (89,365.00), subject to additions or deductions on account of alterations as herein-before provided, and that such sums shall be paid in current funds by the owner to the contractor in installments, as follows:
    Eighty (80) per cent, of the estimated value of • materials furnished and labor performed on the building from time to time as said work progresses.
    It being understood that the final payment shall be made within thirty days after this contract is completely finished; provided, that in each of the said cases the architect shall certify in writing that all the work upon the performance of which the payment is to become due has been done to his satisfaction.”
    The case was tried to a jury and a verdict rendered for the plaintiff for $803.40. A motion for a new trial was made and overruled and judgment entered upon the verdict, to which defendant excepted; and prepared a hill of exceptions setting forth all the evidence, which was allowed and made a part of the record.
    Among the errors assigned, is, that the court erred in its charge to the jury, and in refusing to charge as requested. The facts as to this will be stated in the opinion.
    On error, the judgment was affirmed by the circuit court.
    
      O. S. Ashley, for plaintiff in error.
    1. Was plaintiff below entitled to recover the three hundred and sixty-five ($365,00)dollars or any amount on the unpaid balance of contract price of work?
    II. Was plaintiff below entitled to compensation in underpinning Decker’s house adjoining the west foundation wall?
    The contract says: “It being understood that the final payment shall be made within thirty days after the contract is completely finished,” and it is further provided at the same place that the architect shall certify in writing that all the work upon the performance of which payment is to become due, is done to his satisfaction.
    No such certificate was ever given or ever asked for by. the defendant in error; nor is it alleged that this provision was ever waived by the architect or owner.
    Such a provision in a contract is as valid as any provision and governs the rights of the parties. Smith v. Brady, 17 New York, 173; 29 American & English Ency. of Law, page 931. Michaelis v. Wolf, 136 111., 68.
    
      The plaintiff below did not allege any fraud on the part of the architect or owner in refusing him a certificate, nor did he plead that defendant below had in any manner waived this provision of the contract to entitle him to prove waiver. He should have alleged waiver of this provision or fraud on the part of the architect in his petition.
    Another reason why defendant in error was not entitled to recover judgment below is; that inasmuch as he never completed his contract he has been paid all that he is entitled to have. The contract provides that eighty (80%) per cent, of the estimated value of the materials furnished and labor performed on the building from' time to time, shall be paid the contractor as the work progresses and prior to its completion. More than eighty (80%) per cent, of such value was paid prior to the beginning of such and hence the plaintiff below had no cause of action. The contract is “entire,” and not having been completed no liability arises. Withron v. Withron, 16 Ohio, 238; Larkin v. Buck, 11 Ohio St., 561; Allen v. Curies, 6 Ohio St., 505 ; Ashbrook v. Ilite, 9 Ohio St., 365; 29 American & Eng. Eney. of Law, page 901; Winona v. Minn. R. Co., 27 Min ., 415; Quigley v. DeHass, 82 Pa. St., 267; Coxy. Western R. Co., 44 Cal., 18.
    The defendant in error was not entitled to any judgment for any payment of extra work, for the reason that he failed to comply with article nine of the contract in that he never made any claim in writing for such extras within ten days, and in fact not until long after he had quit the work altogether.
    Such a provision is competent for parties making a contract, and has been upheld in well considered cases. O'Keefe v. St. Francis Church, 59 Conn., 551; Vandeioerker y.R. Co., 27 Vt., 130. Such provisions may he waived by the parties, but waiver, if relied on, must be pleaded and proved. 1, Bates’ Pleading and Practice, 186, and cases- there cited.
    There is nothing in the testimony to show that it was legally incumbent upon either the owner or contractor to underpin this house. Lasalla v. Holbrook, 4 Paige Chancery, 167; S. C. 25 American Decisions, 524; Quincy v. Jones, 76 111., 231; McQuire v. Grant, N. J. L.,256; Thurstons. Hancock, 12 Mass., 220; Stuart v. Cambridge, 125Mass., 102.
    
      L. G. Richardson, for defendant in error.
    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 failure 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. When the owner approves the work, such approval by the architect is dispensed with. Kane v. Stone Co., 39 Ohio St., 1.
    Was there an implied contract by which the plaintiff in error was bound to pay the defendant in error for these extra services?
    This underpinning’ was a work of necessity. Had it not been done the foundation of the adjoining building and perhaps the building itself would have been destroyed. Me Gatrick v. Watson, 4 Ohio St., 566; Parsons on Contracts, volume 11, p. 60; 
      Me Cormick v. Connoly, 2 Bay, 401; Trustees of Farmington Academy v. Allen, 14 Mass., 171,
    Whenever work is done, services rendered, goods delivered, or money paid by one person at the request of another, provided such request be not made and acceded to as a gratuitous favor, a contract is implied to pay the value. American and English Encyclopaedia of Law, volume 3, p 860. Bay v. Catón, 119Mass., p. 513.
    The maxim, qui tacet consentiré videticr, is to be construed indeed as applying only to those cases where the circumstances are such that a party is fairly called upon either to deny or admit his liability. But if silence may be interpreted as assent where a proposition is made to one which he is bound to deny or admit, so also it may be if he is silent in the face of facts which fairly call upon him to speak. Conner v. Hackley, 2 Met., 613; Lamb v. Bunce, 4 M. & S., 275.
    A requirement of the contract may be waived by the parties and this waiver was found by the jury to have been made in this case. Cunningham v. Baptist Church, 159 Pa. St., 620 \ Lewis Yagel, 77 Hun., 337; Goldsmith v. Lland, 26 Ohio St., 101.
   Minshall, J.

In his first cause of action the plaintiff below sought to recover the balance, $365, due him upon a contract for making the excavations and putting in the foundation walls of a building, the defendant was then about to construct in Toledo. The answer discloses that it was done under a written contract, a copy of which was attached to her answer. This was admitted by the plaintiff. Under the contract he was to receive $9,365 for the entire work, and had received in payment, $9,000. The defendant claimed that the work bad not been completed according to contract — that one of the walls had not been brought up to the required height, and that it would require great expense on her part, to complete it. This was denied ; but, on the trial, it appeared that the wall in question had not been brought up to the required height, by some ten or twelve inches, and that it would take some $200 to complete it. It was further maintained by the defendant, that no recovery could be had on this cause of action, because the plaintiffs had procured nocertifieatefrom the architect, as required by the contract, that the work had been completed to his satisfaction. It is admitted that this was not done; and the court refused to charge the jury that it was necessary.

The court properly charged the jury that the plaintiff could not recover on his first cause of action without showing a substantial performance on his part according to his contract. The law in this respect is stated with admirable clearness by Comstock, J., in Smith v. Brady, 17 N. Y., 173-190. He says : “There is, in a just view of the question, no hardship in requiring builders, like other men to perform their contracts in order to entitle themselves to payment, where the employer has agreed to pay only on that condition. It is true, that such contracts embrace a variety of particulars, and that slight omissions and inadvertences may sometimes very innocently occur. These should be indulgently regarded, and they will be so regarded by courts and juries. But there can be no injustice in imputing to the contractor a knowledge of what his contract requires nor in holding him to a substantial performance.” This does not conflict with the case of Kane v. Stone Co., 39 Ohio St., 1. Controlling effect was, in that case given to the fact that Otis, the owner of the building had accepted it, and the variations seem to have been regarded of little consequence. Where there has been an honest effort on the part of the contractor to perform, and not a willful omission, substantial performance is all that is required. And the consequence of an omission, where there has been no willfulnes, may be saved by making a deduction from the contract price of the reasonable cost of what has been omitted. But this must be confined to very narrow limits, and to the cases where there has been an honest effort to perform. Allen v. Curles 6 Ohio St., 505 ; Goldsmith v. Hand 26 Id., 101; Kane v. Stone Co., supra. And see also I Beach Cont., section 111, and cases there cited.

But we think the court erred in its refusal to give the third instruction requested, nor was it in any way remedied in the general charge. In this the court was requested to instruct the jury, that if they found “from the evidence, that thb architect, Sturges, has never certified in writing that the work to be done was done to his satisfaction, then the plaintiff cannot recover on his first cause of action.” There is no claim that this was done, or that he was requested, and wrongly, or for any reason, refused to give such certificate; and the testimony of Sturges shows that he would not have done so, until the walls were brought to the height required by the contract. The contract provided for payment as the work progressed on estimates of the engineer, a certain per cent being retained until completion ; and that the final payment should be made within thirty days after the contract is completed, “provided that in each of said cases the architect shall certify in writing, that all the work upon the performance of which the payment is to become due, has been done to his satisfaction.” Now, this has not been done by the architect, and there is nothing to show any waiver of it. Had the plaintiff shown that he had made application to the architect for the requisite certificate, and that he had obstinately and unreasonably refused to certify, he might then have established his case by other evidence. As said in Smith v. Brady supra. “The parties have seen fit to make the production of such certificate a condition precedent to the payment. The plaintiff is as much bound by this part of his contract as any other. It is not enough for him to bring his action and say he has completed the work which he undertook to do. He has agreed that the architects named should decide whether the work is completed or not. He cannot now withdraw the decision of this question from them and refer it to the determination• of a legal tribunal.” He might, however, as suggestedabove, on an averment supported by evidence that the architect had fraudulently or unreasonably refused his certificate, recover by showing a substantial performance of the work a,s required by the contract, but in the absence of such a showing against the architect, a recovery cannot be had without his certificate.

The most important question in the case so far as it depends upon the amount of the recovery sought, arises upon the second cause of action. This is upon an account for labor and materials furnished. If the under-pinning of the house on the west line of the walls and the lumber furnished and left in the trenches, were properly a .part of the work required to be done under the contract to make the excavations and construct the foundation walls of the building, or should be regarded as an addition, to that work, then the court erred, in its charge to the jury, in saying that it-was not within the terms of the contract, and that if it was a benefit to the defendant and the work was done and the material furnished with her knowledge a recovery could be had on an implied promise to pay what the labor and materials were reasonably worth.

We think the under-pinning and the lumber furnished was part of the work to be done under the contract without additional compensation. By reference to the first clause in the contract, it will be seen that it required the contractor under the direction and to the satisfaction of the architect, todo all the work included in the “excavating,” “foundations,” “stonewalls,’’etc.,agreeably to the drawings and specifications, “including all labor and materials incident thereto. ” He was then to make the excavations and put in the foundations. No provisions were made for any unexpected difficulties in doing the work. He .undertook to do it, and was as familiar with the situation as the defendant. The proof showed that without underpinning the house and using the lumber, that was used, the excavations could not have been made nor the foundations constructed. They were therefore labor and material incident to the work. he had undertaken to perform, and for which, when completed to the satisfaction of the architect, he was to receive $9,365. In Stewart v. Cambridge, 125 Mass., 102, the plaintiff had undertaken by a written agreement to erect and complete the masonry of a building according to plans and specifications. These showed no requirements for piles, which, on the direction of the architect were putin by the contractor, and they sued the defendant to recover on an account for labor and material so furnished. Morton, J.,said: “By the fair construction of this contract, the plaintiffs agreed to do all the work necessary to secure a solid foundation. They took the risk of its being necessary to drive piles in order to secure such foundations.”

But if it were otherwise, we are of the opinion that the plaintiff cannot recover ;• for, at least, the claim is for “additional work. ” And the ninth clause of the agreement provides that, ‘ ‘ The contractor shall make no claim for additional work unless the same shall be done in pursuance of an order from the architect, and notice of all claims shall be made to the architect in writing within ten days of the beginning of such work.” It is not claimed that this was complied with. It was not done in pursuance of an order of the architect, but because the excavations for the foundations could not otherwise be made; nor was any claim in writing made therefor at anytime. This is sought to be avoided by the claim that the architect told him that the defendant would pay him for it. Questions of this kind have arisen a number of times, calling for a construction of such agreements; and the courts have generally held that proof of a waiver of the requirement that the claim shall be in writing and allowed by the architect, can only be made by a writing, or by clear and convincing proof. The very object of the provision is to protect the employer against loosely made claims of the kind; and this case is a good illustration of the wisdom of the rule. The claim of the plaintiff that the architect told him he would be paid, is denied by the architect; who adds that if “I had done so, he would have it in writing.” In Stuart v. Cambridge, supra, a similar waiver was claimed on what the architect said. The court in review said: “We are of the opinion that this evidence was rightly excluded. The written contract carefully provides that any additons to or deductions from the plans and stipulations shall be directed in writing byr the committee or architect, and that “it. is expressly agreed that no alterations or additions are to be paid for unless so directed in writing.” No evidence is offered of any waiver of this provision by the defendant or of any authority in the architect to waive it. The clause was intended to protect the defendant against claims for extra work under alleged oral directions or contract. If the evidence offered can be construed to show an oral promise by the architect, founded on a sufficient consideration, to pay for the work sued for as extra work, it was made without authority, and is not binding on the defendant.” To like effect, see Vanderwerker v. Railway Co., 27 Vt.,. 130-139. In O'Keefe v. St. Frances's Church, 59 Conn., 551, 561, the question arose whether there had been a waiver of the provisions of the contract as to compensation for extra work, the provision being similar to 'the one in this case, and there was evidence of an oral statement by the architect that the work should be paid for. The court said: “We suppose the law to be that the contract must control unless its provisions have been clearly waived. Some of the authorities maintain that there must be an express waiver; and all agree, or should agree, that nothing short of evidence of the most satisfactory character should be permitted to brush aside a contract which the parties have deliberately made. They have determined that certain things shall be proved only by written evidence. ■ To that extent that is the law of this case. It is the duty of the court to enforce that law unless it clearly appears that the parties themselves have abrogated. it. ' Has it been thus abrogated ? The conditions of the contract we are now considering were inserted for the benefit of the owner. There is certainly no presumption that he has waived them. He and he alone, can waive them. No act or omission by the plaintiff will b.e of any avail. If the owner has intentionally relinquished a known right the plaintiff should be able to show it, either in express terms or by acts and' conduct equivalent thereto. Equivocal conduct, or conduct of doubtful import, is not sufficient.”. See, also Weeks v. O'Brien, 141 N. Y., 199; and 2 Beach on Contracts, section 1725.

There is ‘no doubt that where work is done for an individual that is a benefit to him, and he knows that the party doing the work expects to be paid for it, an implied obligation arises on the part of the party benefited to pay what it is reasonably worth. But that rule, and all the cases cited to that effect, are without applicatian here. In a case like this, where there is an express agreement in writing between the parties, the presumption is, that whatever is done that is fairly within the terms of the agreement, is done under and subject to it provisions; and the burthen is on the party making a claim for additional compensation on, a quantum meruit, to show that the work done is not within the terms of the agreement and was so understood by the party to be charged at the time the work was done.

Judgment reversed and cause remanded for a new trial.  