
    SWEENY’S CASE.
    Arthur W. Sweeny v. The United States.
    
      On the Proofs.
    
    
      The claimant contracts to build a wall according to plans and specifications, to be inspected by an engineer of the defendants, and to become their property only after such engineer shall certify that it is in all respects as contracted for. The engineer condemns in the progress of the work brioles, stone, fyo, The contractor nevertheless proceeds and builds the wall of them. The engineer refuses to certif ij that the wall is constructed according to the contract, and the defendants tear it down and build another. The contractor brings his suit and endeavors to show a corrupt and fraudulent motive on the part of the engineer, and that the wall was actually built according to the contract.
    
    I.The leading cases cited and reviewed, in which it is Reid that the certificate of a third person is a condition precedent to a contractor’s recovering.
    II.Where a public contract requires the contractor to produce a government engineer’s certificate that the work is according to the contract as a condition precedent to payment, the contractor should he allowed to prove a fraudulent purpose on the part of an engineer who refuses to give such a certificate, and should not he required to show fraudulent collusion on the part of the government.
    III.A contractor with the government may question the competency of an inspector who is not personally named in the contract, which right he would not have if the inspector had been named and agreed upon.
    IY. Where a contract provides that the claimant shall build a wall to he inspected from time to time, and when completed, by an engineer to he designated by the defendants, and, that after such engineer shall certify “that it is in all respects as contracted for, it shall be received and become the property ” of the defendants, it must he held, in the absence of fraud, gross mistake or acts implying bad faith, or neglect, that the engineer’s certificate is a condition precedent to payment, although the contract does not in terms make it such.
    
      The Reporters’ statement of tbe case:
    The following are the facts of this case as found by the court: I. 0.n or about the 26th day of August, 1873, the claimant and Capt. A. J. McGonnigle, assistant quartermaster of the United States Army, on bebalf of the defendants, entered into the following contract:
    “Article of agreement made and entered into this twenty-sixth day of August, A. D. 1873, between Capt. A. J. McG-on-nigle, assistant quartermaster, United States Army, Washington, D. 0., of the first part, and A. W. Sweeny, of Washington, D. C., of the second part.
    “This agreement witnesses, that the said Capt. A. J. McGon-nigle, assistant quartermaster, United States Army, for and on behalf of the United States of America, and the said A. W. Sweeny, for himself, his heirs, executors, and administrators, have covenanted and agreed, and by these presents do mutually covenant and agree, to and with each other, as follows, to wit:
    •“ First. That the said A. W. Sweeny shall build a wall of brick at the National Military Cemetery at Fort Harrison, Virginia, according to the plans and specifications attached to this contract.
    “ Second. It is expressly understood and agreed that the wall shall be commenced on or before the first day of October, 1873, and shall be completed, ready for inspection, by the twenty-eighth day of February, 1874.
    “Third. In case of failure on the part of the party of the second part to complete the wall in the manner prescribed in the plans and specifications, and at the time agreed upon, or upon his abandoning the construction of it altogether, it is distinctly understood that the party of the first part will have the right to complete the wall, and the total amount disbursed by the United States in completing the wall shall be deducted from the contract price hereinafter named, which would have been paid to the party of the second part had he finished the wall as stipulated.
    “Fourth. It is agreed that from time to time, and when completed, the said wall shall be inspected by an officer of the U. S. Army, or by a civil engineer or other agent, to be designated by the party of the first part, and after such officer, or civil engineer, or other agent, shall have certified that it is in all respects as contracted for, it shall be received and become the property of the United States.
    “ Fifth. It is agreed that for and in consideration of the faithful performance of the above stipulations in all their parts, the party of the first part agrees to pay, or .cause to be paid, when in funds for that purpose, to the party of the second part, the sum of three /-/j, dollars per lineal foot.
    “ Sixth. It is agreed that upon inspection and report of materials furnished, or work done, during the performance of this contract, payment in part may be made to the contractor, said payment in no case to exceed 80 per cent, of the estimated value of the material and work actually furnished.
    
      “Seventh. It is further agreed and expressly conditioned that no member of Congress is or shall be admitted to any share or part of this contract or agreement, or to any benefit to arise therefrom; that it is not transferable without the consent of the proper authority; that any sale, transfer, or assignment of it (except under a process of law) shall and will be considered an abandonment of it, and the said party of the second part, or his sureties, be held responsible for all loss, delay, or damage to the United States which may arise from such abandonment.
    “ Eighth. It is further agreed and conditioned that the party of the second part shall furnish and hang on cut-stone posts one large and two small iron gates, as shown on the annexed plan, for which he will be paid as so many lineal feet of wall, and no extra charge shall be made on that account.
    “In witness whereof, the parties have hereto set their hands and seals in sextuplícales the day and year first above written.
    “A. J. McG-onnigle, [seal.]
    “ Carpt. and A. Q. M., U. S. Army.
    
    “ A. W. Saveeny. [seal.]
    “ Sealed and delivered in the presence of—
    “ Geo. Alex. Meyer.
    “ E. Devlin.”
    II. The claimant commenced preparations for the work in the autumn of 1873. On the 4th December of that year he addressed the following letter to Captain McGonnigle:
    “RICHMOND, Dec. 4,1873.
    “A. J. McGonnigle,
    “ Gapt & A. Q. M., U. 8. A.:
    
    “ Sir: I have the honor to request that the civil engineer be sent immediately to Fort Harrison National Cemetery to inspect material. Please send him at once.
    “Respectfully, yours, &c.,
    “A. W. Saveeny,
    “ No. 13 Governor St.} Richmond, VaP
    
    TTT. G.' D. Chenoweth, civil engineer in the Quartermaster’s Department, was thereupon sent to inspect said material, and made the following report:
    “Richmond, Ya., Dec. 12,1873.
    “ BVt Brig. Gen’l J. D. Bingham,
    
      “Acting Q. M. General :
    
    “Sir: In accordance with instructions, I have the honor to report the following, relative to the work going on at Fort Harrison National Cemetery. * * *
    
      “Mr. Sweeny, contractor for building the brick enclosing-wall at this point, has been very unfortunate with his kiln of bricks, which prove to be very unsatisfactory, resulting in an entire failure.
    “The tests were applied, and I found them destitute of soundness, hardness, and of no uniformity of color, some being almost white. The failure is due to the injudicious preparation of the clay, as well as the burning of the bricks.
    “The earth used is a loam, which may be described as a light sandy clay, and I am of the opinion this clay will make good bricks if the proper care is taken in the preparation of the earth and in tempering. The bricks are not of a compact, uniform texture when broken across, but contain flaws, showing that the earth or clay was not prepared properly, nor do they give a clear, ringing sound when struck, nor are they of proper color, and are totally unsuitable for the purpose they were intended for.
    “Yery respectfully, your obedient servant,
    “G-. D. Chenoweth,
    “ Civil Dng’r, Q. M. DepHP.
    
    IV. The claimant thereupon asked an extension of the time for completing the contract, in the following letter:
    “ Washington, D. C., Deo. 26th, V73.
    
    “A. J. MoG-onnigle,
    
      “Captain and A. Q. M., U. 8. A.:
    
    “ Sir : It is with much regret that I am compelled to ask the dep’t for an extension of time on my contract for completing enclosing-wall around Fort Harrison National Cemetery. The parties contracting with me to make the brick for said wall having failed to such brick as are suitable for that purpose, has prevented me from completing the improvements in the time specified in my contract. As this is an unfortunate circumstance, over w’hich I could have no control, I must respectfully ask that an extension of time be given me up to the 30th June next.
    “Most respectfully, yours,
    “A. W. Sweeny,
    “313 13 8t., 8. DastP
    
    V. The defendants thereupon extended the time for the completion of said work to June 30,1874. On the 22d June, 1874, the claimant, not having commenced the said work, was notified by said Captain McGonnigle that unless a good portion of the wall should be built by the 30th June, 1874, no further extension would be granted.
    
      YI. On the 9th July, 1874, the claimant addressed to Captain McGonnigle the following letter:
    “RICHMOND, July 9, 1874.
    “A. J. McGonnig-le,
    “ Gcvpt. and A. Q. M., U. 8. A. :
    
    “ Sir : I have the honor to request that the civil engineer be sent immediately to Fort Harrison National Cemetery to inspect material for inclosure wall.
    “Respectfully, yours, &e.,
    “A. W. Sweeny.”
    YII. The said Ohenoweth was thereupon Sent to inspect the said last-named material, and made the following report, which was communicated to the claimant: I
    “Washington, D. C., July 21,1874. I
    “ Col. A. J. McGonnigle,
    “A. Q. M., 77. 8. A., Washington, D. 0.:
    
    “ Sir : I have the honor to report the following, after an inspection of a kiln of brick made by Mr. Sweeny, contractor for the inclosing-wall at the Fort Harrison National Cemetery.
    “ The bricks do not possess any of the qualities of good bricks; the great mass of the kiln has turned oat badly; they do not possess the qualities of soundness — that is, are not free from cracks and flaws — nor that of hardness.
    “Mr. Sweeny, in making his bricks, did not give the proper attention to molding, .and owing to this they are very rough. It is important for an ornamental wall that the bricks be smooth and of uniform color.
    “There is no uniformity of color among the bricks in the kiln, which indicates that the kiln was not well burnt.
    “Yery respectfully, your obedient servant,
    “G. D. Chenowetii,
    “ Civil Ung’r, Q. M. Dejj’t .”
    YIII. The following correspondence between the claimant and the Quartermaster-General’s Depattment took place at or about the time of its date:
    “F’t Harrison U. S. Nat’l Cemetery,
    
      “August 21, 1874.
    “M. C. Meigs,
    “ Q. M. Gen’l, B’v't Major-Gen11, U. 8. A.:
    
    “ General : I most respectfully ask permission to be allowec to reduce my gate-post for the National Cemetery at F’t Harri son, Ya. In cutting my posts I have found what is known a¡ powder shakes or flaws produced by blasts. My posts are/wel advanced toward completion, nearly finished. To throw them aside and get new posts would cause quite a serious loss & much delay.' I can get the full size on the front of the post, but to cut out the shake will reduce them about one & half or two inches, thus:
    
      
    
    “My plans call for posts, roadway, 2 Ft square; to reduce them will make them, as you see by diagram, 2 Ft by 22 or 22£ inehes. Should have stated that two of my posts are finished of the full size all around. It is the other two & the middle posts where I meet with the difficulty.
    “I will be in Eichmond to-morrow, waiting for an answer from the officer, which I hope to receive by telegraph, and with as little delay as possible, that I may know what to do. My stonecutters all idle & waiting for orders to finish. My posts are very large, weighing about two tons & a half.
    “Bear in mind it is but two that require reducing; the other two, as stated, are all right. I am making every effort to get through as soon as possible.
    “Yery respectfully, your obedient servant,
    “A. W. SWEENY,
    “1320 Main St, Bid, 7d.”
    
    “August 25th, ’4.
    “Mr. A. W. Sweeney,
    “1320 Main Street, Bichmond, Va.:
    
    “ Sir: In reply to your letter of the 21st instant, in regard to the gate-posts to be furnished under your contract for the wall at Fort Harrison National Cemetery, you are respectfully informed that strict compliance with the terms and conditions of the contract will be required, and any deviation from the plans for these posts will result in their rejection.
    “Yery respectfully, your obedient servant,
    “A. F. Bockwell,
    “ Gapt. and A. Q. M., U. S. Army, in Gh’g’ Bat’d-Cemeteries.”
    
    IX. The excavations for said wall were begun about July 16, 1874. The brick-work was commenced about September 1,1874. The bricks that were mainly used in said work were those which had been condemned, as shown in finding YII, and another kiln burned from similar clay at the same place.; Prior to commencing work the claimant sent to said Chenoweth the following communications on their respective dates:
    
      “Fort Harrison Nat’l Cemeteey,
    
      “August 28, 1874.
    “Mr. G. D. Chenoweth:
    “My Deae Sie: Sent requisition yesterday for civil engineer to Q. M. Gen’l, with request that he be ordered forward immediately. Have the kindness to inform me by card, at 1320 Main St. R’d, when you will be able to get here. I am waiting for you; come as soon as you cau. If can, have card here by Sunday morning.
    “Very truly, yours,
    “A. W. Sweeny.”
    “Haerison, August 29,1874.
    “Mr. Chenoweth : If can, hold back a few days before coming down. I can get along very well for a few days without inspector. Will let you hear from me again during the week. Not necess'ary to get down before the last of next week. “Friendly, &c.,
    “A. W. Sweeny.”
    X. In compliance with the requests set forth in finding IX, the said Chenoweth proceeded to such inspection, and, on or about the 16th September, 1874, made the following report:
    “RICHMOND, VA., Sept. 16, 1874.
    “Col. A. F. Rockwell,
    
      “A. Q. M., U. S. A.:
    
    “Sie : I have honor to submit the following report, after an inspection, on the 15th inst., of the work performed by Mr. A. W. Sweeny, contractor for the permanent inclosing-wall of the Fort Harrison National Cemetery.
    “The following is the amount of work done:
    “Four hundred and ninety-eight (498) lineal feet of wall built, and the foundation for the entire wall laid; gates and gate-posts furnished.
    “After an examination of the work performed at this point, I find it to be unsatisfactory. In the first place, the contractor has used about (25,000) twenty-five thousand bricks out of the kiln condemned by me some time ago. This kiln of bricks did not possess the quality of soundness — that is, free from cracks and flaws — nor that of hardness, to enable them to withstand pressure, nor uniformity of color, which is important in an ornamental wall like this. These bricks have been used in the foundation of the wall.
    “Too much care cannot be bestowed upon the foundation and the character of the materials used in it,
    “If the materials be unsound or badly put together, the efforts of such carelessness by the contractor are sure to show themselves sooner or later, and at a period when remedial effect are useless.
    “The workmanship I consider had in the portion of the foundation I examined. Many bats have been used, and courses are laid with bricks on edge, in order to bring it up level, as the foundation was not started properly.
    “ The last kiln burned by the contractor does not come up to the standard of the material required for this wall.
    “ The contractor has not been careful enough to obtain good, sound bricks, and I cannot accept any of the work performed by him at this point.
    “ The gate-posts are small — that is, do not come up to the requirements of the contract.
    “Measurements of the posts are as follows :
    
      
    
    “ These should be full sizes.
    “Very respectfully, your obedient servant,
    “G. D. Ghenoweth,
    
      “Civil Eng.”
    
    XI. In consequence of the said report, and of the official action of the Quartermaster-General thereon, the following notice was sent to the claimant on or about the day of the date thereof:
    “Office of National Cemeteries,
    “ Washington. J). G., Sent. 28, 1878.
    “Mr. A. W. Sweeny,
    “313 13 th St., S. W., Washington, D. C.:
    
    “Sir: Your contract, dated Aug. 26, 1873, for the construction of a brick inclosing-wall around the Fort Harrison National Oeinetery, provides that the work shall be completed on or before Febr’y 28,1874. The time for the completion of the wall was subsequently extended to June 30, 1874.
    “At your request three inspections have been made of materials proposed to be used in the work, and in each instance the materials offered have been rejected as not complying with the requirements of your agreement.
    “In view of these repeated failures, and the fact that the time granted you for the completion of the wall has long since expired, the Quartermaster-General has directed that no further indulgence in the matter be granted.
    “All the materials furnished by you for this wall, and now at the cemetery, having been rejected, must at once be removed from the grounds.
    “In this connection you are also advised that, under the provisions of the third section of your contract, the United States will immediately proceed with the construction of this wall, and any excess in cost thereof over the price stipulated in your agreement will be charged to you.
    “Very respectfully, your obedient servant, '
    (Signed) ' “A. F. Rockwell,
    “ Gaft, and A. Q. M., U. 8. Army, in charge of National Cemeteries.”
    XII. At the time of the examination referred to in finding X,. the said Choneweth notified the claimant that the material which he was using in the wall was condemned and would not be accepted, and that the gate-posts were not up to specifications and could not be accepted. The claimant, however, con-, tinued to construct the wall of the condemned material, and finished it, using in it about 105,000 bricks , from the condemned kilns and 30,000 bricks fram Manchester, Va., and put into the completed structure the gate-posts which had been rejected.
    XIII. After the completion of the wall as aforesaid, the said Chenoweth, under orders, inspected the same, aud made the following report:
    “RICHMOND, VA., Oct. 22, 1874.
    “Col. A. F. Rockwell,
    
      “A. Q. M., Ü. 8. A. :
    
    “ Sir : I have the honor to report a visit this day, with Capt. T. J. Eckerson, to the Fort Harrison National Cemetery.
    “Mr. Sweeny, contractor for the inclosing-wall, has entirely completed the work, withoiit- paying any attention whatever to 1 the instructions given him relative to the material to be used, nor has he paid any attention to the order of the Quartermaster-General with regard to the gate posts.
    “The condemned material has been used, and I consider the workmanship is very unsatisfactory.
    “Very respectfully, jTour obedient servant,
    “G. D. Ci-ienoweth,
    “ Civil Eng’rP
    
    XIV. In consequence of this report, the wall so constructed was taken down by order of the Quartermaster-General, and a new wall, made of other material, was constructed in its place. The cost of the new wall was $7,829.03. It was not shown that the claimant had any notice of the intent to take down the wall constructed by him, or that any further opportunity was offered him to correct or remedy any defects or errors therein or that there was any other attempt to complete the wall in accordance with the terms of the contract.
    XV. It was not shown that there was any fraud, or any such gross mistake as would necessarily imply bad faith, or any failure to exercise an honest judgment on the part of the said Chenoweth in making the inspections hereinbefore referred to or set forth.
    XVI. No officer of the Army of United States, nor civil engineer, nor other agent of the United States, has ever certified that the said wall constructed by the claimant was in all respects as contracted for, or in any respect as contracted for, other than as shown by the said reports of the said Chenoweth.
    XVII. The claimant then offered evidence tending to show that the wall as completed by him was in compliance with the requirements of the contract; but the court refused to hear such evidence, or to make any finding on that subject.
    XVIII. The claimant has never been paid any part of the contract price for excavating the foundations for said wall and for constructing the same.
    
      Mr. M. I. Southard and Mr. T. W. Bartley for the claimant.
    
      Mr.J.S. Blair (with whom was the Assistant Attorney-General) for the defendants:
    The plaintiff has not successfully impugned the honesty or bona fides of Chenoweth, Mack, and Bckerson. Although the contract does not in express terms say that the decision of the agent or officer of the government should be final, yet the fourth stipulation provides that the wall shall be received and become the property of the United States only upon the certificate of such officer after inspection, and I contend that such certificate is essentia to rcovery. (Shrewsbury v. The United States, 10 C. Cls. II., 37; 23 Wall., 508; Butler v. Tuelcer, 25 Wend., 447; Smith v. Brady, 17 N. Y., 176; P. W. & B. Go. v. Howard, 13 How., 307.)
    If the work and material of plaintiff were in substantial compliance with the. contract, yet on the 28th September, 1874 (p. 96), the United States notified him to proceed no further with its execution, and as no profits have been proved on work unperformed when he received notice to discontinue, the judgment should be limited to the value of the work done at that time, which could not have been much in excess of the 498 feet finished September 15, 1874 (p. 94). (McKee v. The United States, 1 C. Cls. It., 342; Olarlt v. Marsiglia, 1 Denio, 317.)
   Davis, J.,

delivered the opinion of the court :

The claimant contracted to construct a brick wall for the defendants according to plans and specifications. It was agreed that, from time to time and when completed, the wall should be inspected by an ofScer of the Army, or by a civil engineer, or other agent, to be designated by the United States, and that it should be received and become the property of the United States after such officer, or civil engineer, or other agent should certify that it was in all respects as contracted for.

The government agreed, in consideration of the faithful performance of that and other stipulations, to pay the claimant a fixed price per linear foot for the wall. It was also agreed that, upon inspection and report of materials furnished and work done during the performance of the contract, payments in part might be made, not to exceed 80 per cent, of the estimated value of the material and work actually furnished.

Not long after the contract was concluded the claimant invited the defendants to inspect a kiln of brick made to be used in the wall. The defendants sent a civil engineer to inspect it, and the bricks were rejected. From time to time the invitations to inspect material were repeated, both with reference to bricks and with reference to gate-posts intended for the wall. The inspector condemned all the bricks offered, and also the proposed gate-posts.

The claimant, with full knowledge of these decisions, constructed the wall, using the condemned bricks and the condemned gate-posts. The civil engineer refused to certify that the work was such as was required by the contract, but certified to the contrary. The defendants thereupon took down the wall and gate-posts which had been put up by the claimant, and constructed in their place a new wall and new gate-posts out of other material.

The claimant then brought this suit for the contract price of the wall, alleging that he had constructed it in all respects according to the contract, and further alleging that the inspector bad been guilty of fraud in withholding the certificate. He failed, however, to prove fraud, or such gross mistake as would imply bad faith, or that the inspector had not exercised an honest judgment.

The claimant then proposed to show that the wall was actually built in all respects according to the contract. The court refused to allow such proof, or to make a finding on that point. This ruling was clearly right, as we shall show by reference to to a few of the many authorities.

In Worsley v. Wood (6 T. R., 710), the plaintiff sued on a policy of insurance, in which it was stipulated that the assured should procure a certificate of the minister, church wardens, or some reputable householders of the parish, importing that they knew the character, &c., of the insured. The King’s-Bench held that the procuring-of such a certificate was a condition precedent to the right of the assured to recover, and that it was immaterial that the minister, &c., wrongfully refused to sign the certificate.

In Reynolds v. Caldwell (51 Penn. St., 305), the contract sued on provided that “when all the work should be completed there should be a final estimate made by the chief or associate engineer of the quality, character, and value of the said work, agreeably to the terms of the agreement, when the balance appearing due to the subcontractors should be paid.” Mr. Justice Strong said, in delivering the opinion of the court, “it is plain the plaintiff can recover for work done by him under the contract only after estimates made by the engineer of the railroad company.”

In Morgan v. Birnie (9 Bing., 672), the defendant was to pay for the building upon receiving an architect’s certificate that the work was done to his satisfaction. The architect checked the builder’s charges and sent them to the defendant. It was held that this did not amount to such a certificate of satisfaction as to enable the builder to sue the defendant, although the defendant had not objected to pay on the ground that no sufficient certificate had been rendered.

In Batterbury v. Vyse (2 Hurstone. & Coltman 41), the declaration alleged that the plaintiff agreed to do work for the defendant, but no payment was to be considered due unless upon production of the architect’s certificate that the work was done so as to entitle plaintiff to a certificate; but that the architect unfairly, and in collusion with the defendant, and by his procurement, neglected to give it. On demurrer, the court held that this declaration disclosed a good cause of action, inasmuch as it imputed fraud in, withholding the certificate.

In Clarke v. Watson (18 Common Bench R., new series, 277), the court held that it was not enough to allege that the surveyor who was to certify to the work had wrongfully and improperly neglected and refused to give the certificate, but that it was incumbent on the plaintiff to allege and to prove, as an excuse for its non-production, that there was collusion between the surveyor and the defendant; thus reaffirming the decision in Worsley v. Wood.

The learned counsel for the claimant evidently felt the foi’ce of this line of decisions, and endeavored to avoid them. In his complaint he charged that the civil engineer selected and employed by the government to inspect his work was guilty of fraud, and never made a proper survey.

In Kihlberg v. The United States (97 U. S., 398), the claim ant sued upon a contract for the transportation of stores, in which it was provided that the distance should be ascertained and fixed by the chief quartermaster. The Supreme Court held, as to this officer, that in the absence of fraud, or such gross mistake as would necessarily imply bad faith or a failure to exercise an honest judgment, his action in the premises was conclusive on the claimant as well as on the government. This rule is more liberal to claimants than the one laid down by the English courts. There is good rea'son why a claimant against a government should not be required to prove collusive fraud in the government as well as in its agent. It is also, perhaps, j ust that a contractor with the government should have a right to question the competency of an inspector who is not personally-named in his contract, which he would not have had if the inspector had been named and agreed to in the instrument. We therefore think that it was open to the claimant to make the allegations in his complaint, and to prove them if possible; but we have found that he has not proved them. He is, therefore, thrown back on the general rule tb be deduced from all the cases. In an ingenious argument he seeks to avoid the consequences of this rule, by drawing a distinction between the claimant’s contract and the contracts in the cases cited. This contract, he says, provides in terms that the wall shall be completed according to terms and specifications. The inspector’s certificate related only to tbe transfer of the work to the United States. He maintains that it is not intended to be the sole measure of the quality of the work, and that he is at liberty to prove aliunde that the work was done according to the contract.

In Smith v. Briggs (3 Denio, 73), the builder agreed to construct some buildings in strict conformity with specifications,' and the owner agreed to pay for them when he should receive the architect’s certificate that the work was fully and completely finished according to the specifications. The architect refused to furnish the certificate required by the contract. In its place he certified that he was satisfied with the work and materials, and that he would accept them if he were the owner. The court said that it thought the architect did not mean to give the certificate required by the contract; it was evident he “ thought it would be but fair for the defendant to accept the- houses as they were, and we cannot say but this was an equitable view of the whole matter. But the covenant required a strict performance of what the plaintiff had engaged to do, and that such perform-anee should be certified by the architect. The certificate falls short of the work.”

In the present case, as in that one, the contractor bound himself to submit to the inspection and report of another person. In that case it was agreed who the person- should be; in this, he was to be designated by the government. We have already seen what effect this fact had in enlarging the contractor’s rights.

In that case the obligation to receive the work depended upon the receipt of the certificate of the inspector; in this case there is the same identical obligation.

In that case the court held that it was a correlative right to reject the work for the want of such certificate, even though the inspector was satisfied with the work and materials, and would accept them if he were the owner. In the present case the facts only require us to hold that the correlative right, to reject the work exists in the government when the inspector certifies that he is not satisfied with the work and that it is not done according to the contract. •

It is therefore ordered that the claimant’s petition be dismissed.  