
    Thomas v. Fleury.
    A building contract made an architect’s certificate of fulfillment a condition precedent to payment. Held, that when the architect unreasonably.and in bad faith refused the certificate, the builder might recover upon giving other proof of performance, as well, it seems, where the action is upon the contract as where it is upon a quantum meruit.
    
    Appeal from a judgment of the Supreme Court affirming a judgment of the City Court of Brooklyn. The plaintiff brought his action to recover an installment of $2,700 alleged to be due on a contract for carpenter work, materials for a building erected by the defendant, and also for extra work done on the building. The contract for the performance of the work was entered into, and the work commenced, about the 1st September, 1854. It provided that the work was to be done agreeably to the drawings and specifications made by John F. Hondayer, architect, and completed by the 1st April, 1855, in a workmanlike manner, to the satisfaction and under the direction of said architect; to be testified by a writing or certificate under the hand of the architect. The plaintiff was to be paid $11,200 for the work done and materials furnished by him; the payments to be made on the written certificate of the architect in installments of $500, $1,000 and $1,500 at different stages of the work, and $2,700 when it was finished. The contract further provided that should the owner, at any time during the progress of the building, request any alteration, deviation, additions or omissions from the contract, he should be at liberty to do so without avoidance of the contract, and the same added or deducted from the amount of the contract, as the case might be, by a fair and reasonable valuation. If any dispute should arise respecting the construction or meaning of the drawings and specifications, the same should be decided by the architect, and his decision be final and conclusive ; and if any dispute arose respecting the true value of the extra work or works omitted, the same should be valued by two competent persons—one employed by the owner and the other by the contractor—and those two to name an umpire, whose decision should be binding on all parties. The building was to be of brick and brown stone, and the defendant contracted with one Allen to do the mason work and furnish the materials, for the sum of $17,800, to be paid in installments as the work progressed.
    The architect, as the agent of the defendant, directed and superintended the work during its entire progress. Under his direction alterations were made as required by him and extra work performed, especially on the bay windows, at an extra cost, in materials and labor, of $600. The working plans for these windows were furnished by the architect on the 14th April, 1855, after the date fixed in contract for the completion of the building. The plaintiff gave evidence tending to show that during the progress of the work a delay occurred of twenty-one days by reason of alterations which the architect required to be made in the work after it had been done, and also for want of plans and drawings which were to be furnished by the architect; that owing to interruptions and delays in the' mason work, and the work of the plumbers and others employed by the defendant, he was hindered and delayed in doing the carpenter work; that the different installments, according to the contract, except the last, of $2,700, had been paid, and some of them after the 1st April, 1855; and that the work was finished in August or September, 1855. It was also shown that about the 1st August the plaintiff called on the architect to examine the work; that a list was sent to him of work to be done to complete the job, which he caused to be done, and about the 20th August he called upon the architect, who was the defendant’s agent for making payment, for the balance due. The architect met the plaintiff at the building the next day, and they went through together, the architect pointing out and furnishing another list of things to be done to complete the work. The plaintiff caused those things to be done; and afterwards, when he called for the balance due him, another list was furnished by the architect. Regarding the conduct of the architect vexatious, the plaintiff did not perform the work in the last list. It would have cost not more than thirty dollars to do it. The list consisted of trifling matters, in part repairs. About the 1st October the plaintiff requested the architect to give him the certificate required by the contract, which he- refused to do, saying that the work had not been completed, and furnished the last list as work remaining to be done.
    After the defendant had rested, and the plaintiff had rested the second time, the defendant recalled the architect and offered to prove by him that the lumber used in the building was not properly seasoned, and had, by the shrinkage thereof, caused a damage to the defendant of $1,000; that the work specified in the last list furnished to the plaintiff was necessary to complete the work, and that the work had not been completed, in fact, and to his satisfaction. To the testimony offered, and every part thereof, the plaintiff objected, and the referee sustained the objection.
    
      The referee found, as facts, that on or about 1st September, 1844, the plaintiff and defendant made and executed, in writing, the contract set forth in the complaint; that the work was performed on the part of the plaintiff, according to the terms of said agreement, by September 1st, 1855; that the plaintiff was prevented from completing said work by the time specified in said agreement, in consequence of the interruptions and delays which occurred in the progress of the mason work, and of various alterations suggested and required by the architect; and that, under the circumstances, said work was completed within a reasonable time, and as soon as said interruptions and suggestions permitted; and that said work was carried on to its completion with the knowledge and under the supervision of the architect; that the plaintiff applied for the architect’s certificate, as required by the contract, and he refused to give it; that, in addition to the work and materials called for in said agreement and specifications, the plaintiff, at the defendant’s request, performed certain other work, and furnished certain other materials, in and about the erecting and finishing the buildings mentioned in said contract, which were reasonably worth the sum of eight hundred and eight dollars; that the defendant had expended the sum of eighty-four dollars in and about repairing of the work performed by the plaintiff to make the same conform to the contract, and that the plaintiff omitted to perform certain items of work, which, by the terms of said contract, he was bound to perform; and that the defendant has sustained damages, by. reason of such omission, to the sum of thirty dollars; that the defendant has paid to the plaintiff, on account of the payments which were to be made to him by the terms and provisions of the contract aforesaid, the sum of $8,500-; that there remains unpaid to the plaintiff of the payments, so to be made to him, the sum of $2,700.
    The referee’s conclusions of law, from the foregoing facts, were, that the defendant was not entitled to any deduction for any damages he had sustained on account of any loss of rent of said buildings, or by reason of the failure of the plaintiff to have the same completed by the time specified in said contract, or because said work, or any part thereof, had not been done conformably to the said contract and specifications; and that the said défendant is indebted to the said plaintiff in the sum of $2,585, and interest thereon from 1st October, 1855, and also in the sum of $808 (the referee, in his report, puts this latter sum at $764). The defendant excepted to the findings aforesaid, both of law and fact, and to each and. every thing thereof specifically.
    Judgment was entered accordingly for $3,701.97; and on appeal to the Supreme Court the judgment was affirmed, if the plaintiff would consent to deduct from the amount allowed for extra work the sum of $208, and interest from the date of the judgment. The plaintiff consenting, judgment was affirmed. The defendant appealed to this court.
    
      William R. Darling, for the appellant.
    
      R. C. Underhill, for the respondent.
   Wright, J.

Several objections were raised on the trial to the admission or rejection of evidence; but two of which were insisted on in the argument at bar. With the view of showing that work extra and outside of the contract was done by the plaintiff, after putting in evidence the several working drawings furnished to him in the progress of the work by the architect named in the contract, he offered to prove that the work was performed according to the plans furnished; that they showed work which did not appear on the plans annexed to the contract, and in that respect the plans varied. The evidence offered was objected to by ihe defendant on the ground that the same was irrelevant and incompetent; and the objection was overruled by the referee. It is now urged that this ruling was erroneous, not for the reasons assigned to the referee, but because the contract fixed a tribunal for valuation of extra work, and it could not rightfully be investigated by' a court of law. If there is really anything in this grofind, it comes too late, being urged .here for the first time. Ho such ground was hinted at in the defendant’s answer or before the referee. The objection that the offered evidence was irrelevant and incompetent did not direct the attention of the referee to the point. The complaint averred that the plaintiff, at the request of the defendant, did extra work, in and about the erection and completing of. the buildings, which was reasonably worth the sum of one thousand and six dollars, and the defendant answered denying the performance of the work and the value of the same. Evidence in support of the allegations of the complaint, and to maintain the issue thus formed, was not objectionable on the ground of irrelevancy or jncompetency; and this was the only ground of objection before the referee.

After the plaintiff had twice, and the defendant had intermediately rested, the defendant called the architect, and proposed to re-examine him as to new matter, and not to rebut statements of the plaintiff’s witnesses after the latter had resumed the examination. This the referee would not allow to be done, and sustained an objection to receiving the proposed testimony. The refusal of the referee, after the defendant had once rested, to allow him to open the case and reexamine his witness as to new matter, is not a subject for review in this court. It was entirely discretionary with the referee, and the refusal is not a ground for exception.

The only remaining question is, whether the plaintiff was entitled to recover the amount of twenty-seven hundred dollars, the last installment, stipulated to be paid on the completion of the work. The plaintiff and Abraham Allen contracted to erect and finish the building by the 1st April, 1855. Allen was to furnish the materials and do the mason work, for which he was to be paid the sum of $17,800, and the plaintiff to furnish the materials and do the carpenter work, for $11,200. These payments, both to the mason and carpenter, were to be by installments as the work progressed. The last payment of $2,700 was to be made to the plaintiff on the completion of the work. The building was to be erected and finished agreeably to the drawings and specifications of Houdayer, the architect, annexed to the contract. The work was to be done in a workmanlike and substantial manner, to the satisfaction and under the direction of the architect, to be certified by a writing or certificate under his hand. The contract further provided that the installments, at different stages of the work, were to be payable, in each case, on a certificate signed by the architect. The referee found the fact that the work was performed on the part of the plaintiff according to the terms of the agreement. It is true that he afterwards finds that the plaintiff omitted to perform certain items of work, which, by the terms of the contract he was bound to perform, amounting to some thirty dollars, which sum he allowed to the defendant. This was contradictory to the previous finding, and is only to be reconciled on the theory that the referee deemed those omitted items so trivial and insignificant as to justify the finding that the contract had been substantially performed. This was the view taken by the Supreme Court, and I think the correct one. If we were to look at the case and evidence to interpret the apparent contradiction in the findings, it would be quite evident that there had been a substantial compliance; and that these omitted items of work, for which the referee allowed, were hatched up as deficiencies by the defendant’s agent and architect after the parties had gone through the building together, and the work pointed out by the architect as necessary to complete the job had been done by the plaintiff.

It is conceded that the building was not finished within the time prescribed by the contract, viz., 1st April, 1855. The referee finds that the work was completed by the 1st September, and the plaintiff was prevented from completing it within the time specified by the agreement in consequence of the interruptions and delays which occurred in the progress of the mason work, and by various alterations suggested and required by the architect; that the work was carried on to its completion, with the knowledge and under the supervision of the architect, and, under the circumstances, was completed within a reasonable time, and as soon as 'the interruptions and suggestions permitted. When, the defendant and his agents prevented the plaintiff from completing the worlr within the time fixed by the contract, and his architect and agent continues to supervise it after that time, and it is completed as soon as the defendant’s interruptions and required alterations will allow it is no ground for resisting a recovery that the work was not finished by the time specified in the contract.

It was a provision of the contract that the building should be erected and finished agreeably to certain plans and specifications, in a workmanlike manner, to the satisfaction and under the direction of Houdayer, the architect, to be testified by a writing or certificate under his hand, and the defendant was to pay the sums named, in the manner and at the times mentioned in the agreement, provided that in each case a certificate was obtained, signed by the architect. The substance of this is, that the work was to be done under the direction of the architect, who was to be satisfied with it as it progressed, and whose satisfaction was to be evidenced by his certificate in writing; and upon obtaining such certificate, the plaintiff was to be paid certain amounts of the gross sum of $11,200, at certain stages of the work. At these stages, if the architect was not satisfied, he could withhold the certificate, and without it the defendant could refuse to pay. The plaintiff was paid the sum of $8,500 (all of the contract price, except the last payment of $2,700), without any dissatisfaction expressed by the architect, and without his written certificate. These payments were made by the defendant, through the architect, acting as his agent, and no question was raised as to a written certificate until after the action was brought. When the plaintiff required payment of the last installment of $2,700, the only objection was that the work had not been completely finished according to the terms of the agreement. Regarding the action, however, as brought exclusively upon the contract, and that the obtaining of the architect’s certificate was a condition precedent to a recovery, a failure in the latter respect would not be fatal to the plaintiff’s right. The architect was the defendant’s agent, and if he unreasonably and in bad faith refused the certificate, the plaintiff is not to be held responsible, but he may establish his right to recover by other evidence. The certificate is mere evidence of the substantial fact of performance ; and if the kind of evidence of the fact stipulated for is obstinately and unreasonably withheld, a forfeiture of $2,700 is not to be exacted, for that reason, from the plaintiff. The referee found, as facts, that the work was performed on the part of the plaintiff according to the terms of the agreement; that it was carried on to its completion; that the plaintiff applied, for the architect’s certificate, and that he refused to give it. It cannot admit of a doubt that the 'contract being strictly performed, and the party entitled to his money, it was unreasonable and unconscientious in the architect to refuse the certificate. But, again, the original drawings and specifications annexed to the contract, and in reference to which it was expressly made, and which formed a part of it, were so far deviated from by the defendant’s direction, as to render the obtaining of a truthful certificate, pursuant to the contract, impossible, even if the architect was disposed to act in good faith. ■ A certificate of some sort could have been given, but not the certificate insisted on as a condition precedent to a recovery; and' this not through the plaintiff’s fault, but in consequence of the defendant’s directions. Besides, the work progressed with the defendant’s knowledge and approbation, as evinced by the payment of all the installments but the last, without any certificate whatever being obtained or demanded, and the defendant accepted, and went into the enjoyment of the buildings. To defeat a recovery upon the facts found and developed in the case, because of the non-production of the architect’s certificates, would be manifestly unjust to the plaintiff and a reproach to the law.

The judgment of the Supreme Court should be affirmed.

All the judges concurring,

Judgment affirmed.  