McKenna v. Vernon

Opinion by Mr. Justice Stewart, This was an action to recover a balance alleged to be due on a building contract. By written agreement under date of January 20, 1914, the plaintiff undertook the erection and completion of a moving picture theatre at 1526-28 Cumberland street in the City of Philadelphia, agreeably to certain plans and specifications which accompanied and were made part of the agreement, he to receive therefor, in full compensation, the sum of $7,750.00, to be paid by the owner to the contractor wholly upon certificates of the architect as follows: Eighty per cent, of the work set in place as the work proceeds, the first payment within thirty days after the completion of the work; all payments to be due when certificates of the same shall have been issued by the architect; the building to be completed by April 20, 1914, 21 and the work to be done under the direction of tbe architect. A supplemental agreement was entered into by the parties March 24, 1914, which provided for an enlargement of the theatre building, for which the contractor was to receive an additional $1,000.00. The main provisions of this agreement were similar to those contained in the earlier. By the later agreement the work was to be completed on or before the 11th of May, 1914. From time to time as the work progressed, the owner made several payments on account, amounting in all to $6,000.00. Suit was brought, August 28, 1914, to recover the balance of $2,750.00, with interest from June 30, 1914. Defense was made on several grounds; failure of contractor to erect and complete the building in accordance with the plans and specifications, the substituting of inferior and cheaper materials, and inferior workmanship throughout, entailing for the supply and correction of the same, if attempted, a large expenditure. Further, defendant claimed that the building was not completed within the time allowed by the contract, and demanded as a set-off a penalty of $283.35. The trial resulted in a verdict for the plaintiff for $2,500.00. At the conclusion of the evidence, the defendant asked for a compulsory nonsuit, which was refused. The several assignments of error, in one form and another, relate directly or indirectly to this one feature of the case, and are all based on the theory that in the absence of a certificate from the architect of the final completion of the building in accordance with plans and specifications, no right of action existed. Not only is there no express provision to this effect in the contract, but the contract itself shows that no distinction is there made between final payment and the payments on account of the eighty per cent, of work in place. All payments were to be made only on certificate of the architect, and yet with a single exception each of the seven payments made as the work progressed was made without a certificate being asked for. With such constant 22 and repeated disregard on the part of the owner to exact compliance with this provision in the contract, it is too late now for him to insist that failure on the part of the plaintiff to secure such certificate before suit defeats Ms right of action. Furthermore, on the trial, the architect called as a witness, testified that the plaintiff had performed substantial compliance with all the requirements of the contract; that he had not given the certificate to this effect only because it had not been asked for, and that whatever variations there were from the specifications were authorized and directed by him. The provision in the contract for written certificates from the architect is for the benefit and protection of the owner. If he waived it repeatedly, as he did here, during the progress of the work, he cannot complain if he be held to have waived it when he seeks to defend against a final payment for work shown to have been honestly and substantially performed, especially when almost daily he has had the work under his own observation, without remonstrance or complaint at any time with respect to either the work done or materials employed. This being the situation, the court was entirely right in refusing the nonsuit. For like, reason, there was no error in refusing to give binding instructions for the defendant. If the court was right in these rulings, the other assignments of error necessarily fall. The judgment is affirmed.