McAuley v. Carter

Breese, J. By the contract between the parties in this case, it is provided that the work shall be done in a careful, skillful and workmanlike manner, to the full and complete satisfaction of W. W. Boyington or his assistant superintendent, and on completion of the contract the balance due shall be paid appellees, “ provided the said superintendent shall certify in writing that they are entitled thereto.” The appellees are required by the contract, to submit in all things to the judgment of the superintendent, and he is declared to be, “ superintendent of the work for the owner,” and the owner is also bound, in all cases, to recognize the binding effect of the acts of his superintendent. This being the contract of the parties, the case on the part of the appellees, was made out, by producing and proving the final certificate of the superintendent. That was the condition, and the only one, on which their right to recover rested, and when produced, it must be held, in the absence of any fraud, conclusive. No evidence of the amount of work done, or of its character, was admissible—both parties are concluded by the certificate of the superintendent. The Board of Trustees of Ill. and Mich. Canal v. Lynch, 5 Gilm. R. 526 ; McAvoy v. Long, 13 Ill. R. 147. The superintendent must be regarded as the sole and exclusive judge of all matters pertaining to this contract, and from his decision there is no appeal, nor can it be attacked except for fraud or mistake, neither of which is alleged. And the mistake to be available must be one which shows clearly, the superintendent or judge, was misled, deluded, and so far misapprehended the facts, that he did not exercise his real judgment in the case. Nothing of this sort is pretended here—there is no such issue. No notice being required by the contract to be given the appellant, that appellees had obtained the certificate of the superintendent, the instruction asked for was properly refused. He was, besides being sole judge between the parties, the agent of the appellant, and of course appellant had all the notice necessary and was bound to take notice of his acts. The condition precedent to the payment of the money having been performed by the production and proof of the superintendent’s certificate, nothing remained for them to do, and it is wholly immaterial whether the work was well or ill done,' so that the superintendent was satisfied. The judgment is affirmed. . Judgment affirmed.