Tetz v. Butterfield

Taylor, J. The material questions to be determined" upon this appeal are — first, whether, under the contract, in the absence of any proof of fraud, mistake or unfair dealing on the [246] part of the architect, Davelaar, his acceptance of the work as completed in accordance with the terms of the contract would hind the defendant; and second, whether the answer sets up facts which would entitle the defendant to show that, although there had been an acceptance.of the work by the architect, such acceptance was not in good faith, but in fraud of the defendant’s rights. Upon the first question, a majority of the members of this .court are of the opinion that if the good faith of the acceptance of the work by the architect is not impeached, it is binding on the defendant as to the kind of workmanship done and materials furnished by the plaintiff; that the last paragraph of the contract, which requires the work to be executed so as to fully carry out the design for said 'building as set forth, etc., “ to the full and complete satisfaction of the architect, Davelaai’, who is declared to be superintendent, and to the satisfaction of the owner,” has no reference to the quality of the work done or the materials furnished; that this provision was put in the contract only for the purpose of preventing any change of the plan or design of the building without the consent and approval of the defendant; but as to all other matters the work was to be done to the satisfaction and acceptance of Davelaar, the architect, and when so done the plaintiff would have performed his contract, unless it be shown that there was fraud, mistake or want of good faith on the part of the architect in accepting such work. Upon the second point, we are all of the opinion that the matters set out in the answer were sufficient to authorize the defendant to show there had been either fraud, collusion or bad faith on the part of the architect in accepting the work; and that if he had been able to establish by his evidence the facts set out in his answer, such evidence would have tended to establish at least bad faith on the part of the architect, and so would have avoided the conclusive effect of his acceptance of thé work. If the defendant could have shown by his evidence that the plaintiff put rotten materials in the floors and roof of [247] said building, where the contract required°him to put in good, sound timber and materials, or that be had done other things alleged in the answer in direct contravention of the requirements of the cqntract, and that, notwithstanding such facts, the architect had accepted the work, after being informed of the facts by the defendant, and against his objection, it seems to us that it would be competent evidence to go to the jury on the question of the bad faith of the architect in accepting the same. In the case of Hudson v. McCartney, 33 Wis., 331, the late Chief Justice Dixon says: “Neither do we think the case was one where the jury should have been permitted to go into evidence of the manner in which the work was executed, for the purpose of impeaching the decision of the superintendent;” but, he adds, “if fraud in the arbiter can ever be established by proof that he refused to certify the execution of the work when the same had been duly and properly performed, it can only be in those cases where the refusal is shown to have been grossly and palpably perverse, oppressive and unjust — so much so that the inference of bad faith and dishonesty would at once arise when the facts are known.” The evidence offered by the defendant in this case, if given, would have tended to prove such a state of facts as would, at least, have justified an inference of bad faith on the part of the architect in accepting the work. Knowingly accepting unáound and rotten materials, where the contract called for sound materials, would certainly tend to prove bad faith; and if the evidence had shown that he had permitted large quantities of such material to be used, when the contract called for sound and perfect materials, it would be almost conclusive evidence of that fact. Proof that a few pieces of imperfect material had been used, or that in some slight matters the workmanship had not been in strict accordance with the terms of the contract and specifications, would not be sufficient to avoid the acceptance of the work by the architect, nor establish bad faith on his part; but it seems [248] to us, if the defendant had proved all the matters set out in his answer to their full extent, it would have shown such a want of faithfulness on the part of the architect as should render his acts ineffectual to bind the defendant. "We think the court erred in excluding the evidence offered by the defendant, and for that error the judgment must be reversed. By the Court. — The judgment of the circuit court is reversed, and the cause remanded for a new trial.