
    THE AMERICAN CORRUGATED IRON COMPANY, Plaintiff, v. HENRY EISNER, Defendant and Appellant, and ELIZABETH PHELAN, Executrix, &c., and JOHN J. O’BRIEN, Defendants and Respondents.
    BUILDING CONTRACTS. • MECHANIC’S LIEN.
    Any or all of the several provisions of a written contract can be waived by parol.
    A party may always surrender the benefit or advantage of a provision in his favor, and parties may by a new and independent agreement contract for work or materials, other and different from such as may be specified in the original contract, and this may be done by parol. Where the original contract provided for certain certificates from the architect, &c., as to the work being done and the materials being furnished, &c., &c., agreeably to the contract, such provisions will not apply to or affect, extra work done in accordance with a subsequent parol agreement, unless such extra work is made subject thereto by an express agreement.
    The findings of a referee upon conflicting evidence should not be disturbed, and especially so, when the contradictions are irreconcilable, and one side or the other must be disregarded.
    His findings of fact, like the verdict of a jury, will not be disturbed by an appellate court, unless unsupported by, or very clearly against, the weight of evidence.
    Before Monell, Ch. J., and Freedman, J.
    
      Decided March 1, 1875.
    Appeal from a judgment entered upon the report of a referee.
    The action was to foreclose a mechanic’s lien on real property in this city.
    Henry Eisner, the appellant, was the owner of the premises, and the defendants Phelan, Foley, and O’Brien were lienors of the same property, between which lienors and the owner, the contest arose.
    The action being at issue between the owner and lienors, it was referred to a referee to hear and determine.
    The referee found as facts :—
    That Eisner was the owner of the property.
    That in pursuance of contracts, or directions made or given by Eisner, O’Brien, performed certain work, and furnished materials therefor, in the construction of a building on the premises.
    That the work and materials “ so performed and furnished, the same being all extra work, was of the value,” &c.
    That in due time O’Brien duly filed a mechanic’s lien on said property.
    That William Phelan (now represented by his executrix) furnished stone to said O’Brien, which he used in the construction of said building, and for which said Phelan duly filed a mechanic’s lien.
    That there remained due from Eisner to O’Brien under their contracts, the sum of two thousand eight hundred and nineteen dollars and forty-four cents.
    And as conclusions of law :—
    That for the sum aforesaid, O’Brien was entitled to judgment against Eisner; and that out of that sum the executrix of Phelan, was entitled to be paid the amount of his lien.
    The judgment directed a sale of the premises, and the payment out of the proceeds of the amounts due to O’Brien and Phelan respectively.
    From the judgment Eisner appealed.
    The contract between Eisner and O’Brien, provided for the payments to be made by the former, as follows :—
    “ $1,500, when foundation was laid; $1,500, when stable was built; $2,000, when completely finished ; provided that in each of the said cases a certificate be obtained by the party of the second part (O’Brien) and signed by the said architect, and also a certificate of the county clerk that there are no liens, attachments or other incumbrance on said premises under the above agreement.”
    It was further provided that “should any dispute arise respecting the true value of the extra work, or works omitted, the same shall be valued by two competent persons, one employed by the owner and the other by the contractor, and those two shall have power to name an umpire whose decision shall be binding on all parties.”
    The contract also contained the following:
    “ Should the owner at any time during the progress of the said building request any alteration, deviation, additions, or omissions from the said contract, he shall be at liberty to do so, and the same shall in no way effect or make void the contract, but will be added" or deducted from the amount of the contract as the case may be, by a fair and reasonable valuation, but nothing shall be allowed or considered as extra but such as shall be ordered by the owner, in writing, with the price to be paid therefor thereon written.”
    The referee upon the settlement of the case made the following additional findings of fact:
    That there has been no demand proved for any arbitration.
    That when the defendant Eisner ordered the extra, or additional work mentioned in the referee’s report herein, he promised to O’Brién to pay the value of it, and did not tender any written order for it, or offer to make such an order, and that all such extra or additional work was done by Eisner’s direction and consent, and under his own supervision, and that he has not proved any demand for any arbitration in relation thereto.
    
      That the total value of the said extra work was the price of two thousand nine hundred and seventy dollars and forty-nine cents, and that no part of said sum has been paid to said O’Briem
    And as matter of law:
    That the architect’s and clerk’s certificates and arbitration did not apply to the extra work mentioned in the foregoing finding.
    That the provisions in the contract as to extra work were provisions in favor of Eisner, and might be waived by him by parol at any time, and that the actions and directions of Eisner, as to said additional or extra work and materials, constituted a perfect waiver of all said provisions.
    The defendant Eisner duly excepted.
    The referee refused to find, that a portion of the work allowed for in the report was work done under the contract between O’Brien and Eisner, or that there was no waiver of the contract on the part of Eisner.
    But he did find, that at the time of the commencement of the action there were prior lienv upon the premises for work or materials upon said building which were valid and subsisting liens; nnit. that no certificate from the county clerk that there were no liens, was procured by O’Brien, before the commencement of the action.
    The defendant Eisner also excepted to tire refusals of the referee.
    
      J. M. Smith, for appellant.
    
      F. H. Man, for respondents.
   By the Court.—Monell, Ch. J.

Without examining at any length the other questions discussed by the appellant’s counsel, the decision of the referee may be sustained, if his finding of fact that the work in question was extra or additional work, and that the provisions in the contract in respect to it was waived, • is supported by the evidence.

It is quite clear that the provisions in regard to the architect’s and clerk’s certificates, relate only to the payments to be made upon the contract as therein specified, and have no relation whatever to any extra or additional work, outside of the contract, which might be ordered by the owner. For the protection and satisfaction of the owner, he had a right to insist that his contractor, as a condition precedent to payment, should procure the certificate of the architect, that the work had been done in conformity with the contract and specifications ; and also the certificate of the county clerk, that there were no liens upon the premises under the contract. But the parties did not, in terms, require any such certificates in respect to any extra or additional work that might be done ; and such certificates would, probably, be wholly inapplicable to that class of work. Nevertheless, the owner might have made it a part of his contract- that, as a condition precedent to payment for extra work, similar certificates should be furnished. But he did not do so, and merely required that the order for extra work should be in writing.

The referee was correct in his conclusion of law, that any or all of these provisions could be waived by parol. The parties were not bound absolutely, and a party may always surrender the benefit or advantage of a provision in his favor, if it is voluntarily done, and there is neither mistake nor fraud. So parties may, by a new and independent agreement, contract for work or materials, other or different from such as is specified i n their contract, and, ordinarily, such extra work will not be affected by the covenants or stipulations in the contract. It, of course, can be made to be subject to such covenants, by an express agreement to that effect, but the obligation can not be implied.

The referee has found that the work which was the subject of the lien was extra or additional work ; that the owner did not tender or offer to make a written order for it, but that it was done by his direction and consent, and under his supervision ; and that he did not demand an arbitration in respect to the value of it.

Those findings, if correct, are conclusive of the right of the lienors to recover.

The right of the owner to give a written order for the extra or additional work, and to insist at all times, that without it he should not be liable, was a provision in his favor. The builder had no interest in or right over it, and it is doubtful if he could have insisted upon it. But being wholly within the power of the owner, he could, and as the referee has found,, did waive it; and therefore he can not now insist that the extra or additional work was not ordered in the manner prescribed by the contract.

The provision in the contract in respect to the mode of ascertaining the value of any extra or additional work, was for the benefit of both parties, and either could, probably, have insisted upon resorting to it, to settle these differences. But the referee has found, and it is not disputed, that neither party demanded the arbitration, so that neither can now claim any advantage of objection from it.

The evidence before the referee upon the several questions,—of the character of the work, the manner in which it was ordered, and the waiver under the contract which upon his finding justify his judgment, was contradictory and disputed. On the one, side the testimony of the contractor supported and corroborated by two witnesses; and upon the other side, the testimony of the appellant Eisner, also supported and corroborated by two witnesses. There was a direct antagonism in their evidence, and it became a question which the referee would believe. He had the witnesses

before him, he saw them and heard them testify, and had such other opportunities as the trial afforded, of judging of the credit which should be given to the one or the other. And being satisfied in his own judgment, he accepted the evidence of the contracts and discredited that of the owner.

It is very clear that a judge would not have been authorized to have taken the case from a jury, if it had been before one, and it follows, as equally clear, that their verdict could not properly have been disturbed.

And the same effect must be given to the findings of a referee upon conflicting evidence, and especially is this so, whén the contradictions are irreconcilable, and one side or the other must be discredited.

A referee is bettet able to decide upon the credit of witnesses, than a court sitting in banc can be ; and it is for that reason, that upon appeal his findings of fact, like the verdict of a jury, will not be disturbed, except it be unsupported by, or very clearly against, the weight of the evidence.

But I am not aware of any case where its determination rested solely upon the credit of witnesses, that the appellate court has interfered with the result.

The judgment should be affirmed with costs.

Freedman, J., concurred.  