Mills v. Weeks

Walker, J. The first assignment of error, questions the correctness of the decision of the court below, in excluding the statement on the opposite side of the paper, containing the certificate of the superintendent. It is insisted that this statement was admissible under this provision of the contract of the parties, that Boyington, or his assistant architect, should be the superintendents of the work, for the owner, which provides that “ their duties will consist in giving, on demand, such interpretations, either in language, writing or drawing, as in their judgment, ' the nature of the work may require, having particular care that any and all work done, and materials used for the work, are such as is hereinafter described, and in giving, on demand, any certificates that the contractors maybe entitled to, and in settling all deductions of, or additions to the contract price, which may grow out of alterations of the design, after the same is declared to be contract; also, determining the amount of damages which may accrue from any cause, and particularly to determine upon the fitness of all materials used, and work done.” The certificate read in evidence, by appellees, was given by Boyington, on the back of a paper containing his statement of an account between the parties, and in which he states, that the bill in his judgment is correct. And in the certificate, he says he has carefully examined the whole matter, and given to appellees a written list of different deficiencies under the contract, which he wished them to perform, in order to complete the work, and when they should be completed, the building would be acceptable. In the bill of ■ items, referred to in this certificate, he fixes the amount of extra labor and materials, furnished by the appellees, and estimates the damages sustained by the appellant, for delay, and the damages that the carpenters had sustained by delay of the work by appellees, and allows payments made by the appellant to the appellees, and items to other persons, as charges against them. The architect, under this agreement, had the authority, and it was made his duty, to estimate all additions-to, or deductions from the contract price, growing out of a change of plan, or damages accruing from any cause. If any of the items in this account, were for increased labor or materials furnished by reason of a change in the plan of the work, then such estimate, both as to amount and value, were admissible, as they were provided for by the contract, and the superintendent was required to make such estimate. But if any portion of these items were for labor and materials, not embraced in the original contract, and were furnished without any change in the plan, then the contract did not authorize the superintendent to take them into his estimate, and appellees were not bound by his estimate of such items. The superintendent had the right, under the agreement, to estimate and determine the amount of damages which might accrue, from any cause. The delay in completing the building within the time specified, was a damage to the appellant, and although the parties agreed that it should be thirty-two dollars for each day that the work should be delayed, still the amount was not determined, and it still required that the number of days be ascertained, before the amount could be fixed. This damage was one of the causes provided for in the agreement, and the superintendent had a right to estimate it, and when made, the parties were bound by it. But the contract gave to the superintendent no right to fix and determine the damage the carpenters had sustained, and until they claimed of appellant such damages, and the amount had been ascertained, the superintendent had no right to take them into any estimate he might make. If they were charged to, and paid by appellees, and were never claimed of, or paid by appellant, to the carpenters, appellant would receive money to which he has no claim,, legal or moral. Nor does the agreement confer upon the superintendent, the right to ascertain and allow payments made by the owner to the contractor, and so far as his statement of accounts between the parties makes such charges, it is unwarranted, and is not binding upon them. But when the appellees offered this certificate, the account should have been admitted with it, and the court should, by instruction, have directed the jury to disregard such portions as the superintendent was not authorized to make, and to receive and act upon the remaining portion, as evidence in the case. It was urged on the argument, that the court erred in not excluding the evidence, because the appellees did not show that the work had been accepted by the superintendent. He by his certificate to both parties, stated that when some slight additions were made to the work, that it would be acceptable. And the evidence tends to show that this work had been done, and the superintendent was notified of the fact, and no objections made. And we think that these facts show a sufficient acceptance of the work, to authorize appellees to maintain an action, to recover the balance, if any, to which they may be entitled, under the contract. So soon as this work, specified and required to be done by the superintendent’s certificate, was performed, the work, by the terms of that certificate, was accepted by the superintendent, and they then became entitled to their pay, under the contract. If the contractors became entitled under this contract, to additional compensation for work and materials furnished in consequence of any alteration of the plan, and had used all reasonable efforts to get the superintendent to make the estimates of the same, and were prevented by accident, fraud or any unavoidable cause, they would be entitled to recover for such labor and materials, such value as they proved themselves entitled to receive. But under the provisions of this agreement to recover for such items, they are required to produce the superintendent’s written certificate of amount and value, or show that they have made the effort to procure it and have been prevented by fraud, accident or unavoidable cause. Upon an examination of the record we perceive no evidence tending to prove that H. B. Weeks was a partner of his sons in this transaction, the appellant’s third instruction was therefore properly refused. The various questions raised by the errors assigned in refusing the other instructions of appellant, and the modification made to the first, before it was given, have already been considered in this opinion, and we deem it unnecessary to again notice them specifically. The judgment of the court below is reversed and the cause remanded. Judgment reversed.