Davidson v. Provost

Garnett, J. Appellant and appellee made a contract by which Provost agreed “to build, finish and complete a building at No. 59 Wilson St. in a careful, skillful and workmanlike manner, to the full and complete satisfaction of Ackerman & Smith, architects and superintendents, and have all work fully completed on or before April 25, 1886, * * * so as to fully carry out the designs of said work as set forth in the accompanying specifications, and the plans and drawings therein especially referred to, the same being made a part of said contract;” Davidson reserving the right and privilege of making any alterations in the designs; and he agreed to pay to Provost $7,050, said amount to be paid in installments; fifteen per cent to be paid upon completion of contract, payable on architects’ certificates. Boon afterward Smith, one of the architects named, died, but work on the building proceeded under the superintendence of Ackerman. He issued the certificates for payments to the contractor, and they were paid without objection by appellant, excepting a certificate for $450 for extra work, and the final certificate for $1,000 for labor and materials provided under the original contract. Provost filed his bill in the Superior Court to enforce a mechanic’s lien for the amounts so remaining unpaid; a decree was entered in his favor for $1,930.45. Appellee contends that the certificates of Ackerman are conclusive, while Davidson insists that the death of Smith terminated the power to issue them so as to bind him. The general rule governing in such cases is stated in Mechem on Agency, Sec. 251: “ As has been seen, a power confided to two or more private agents must ordinarily be exercised by all of them jointly; the death of one of them, therefore, where the authority is joint, renders the further execution of the agency impossible and it is therefore terminated. Where, however, the agency is joint and several, the death of one agent does not terminate it.” See, also, Morse on Arbitration, 162; Sngden on Powers, 145 146; 1 Wait’s Actions & Def. 291; Hartford Fire Ins. Co. v. Wilcox, 57 Ill. 181; Robson v. Drummond, 2 B. & Ad. 303; Rowe v. Rand, 111 Ind. 210. The recognition by both parties, of Ackerman as superintendent and architect, after Smith’s death, takes the case out of the general rule. If Davidson intended to confine his authority within narrower bounds than those the contract prescribed for Ackerman & Smith, he should have notified Provost of his intention, instead of encouraging him to rely upon that interpretation of his acts which would be commonly given them. The effect of the certificate, however, is not as absolute as indicated by the rulings of the court on the hearing of the case. The defendant produced witnesses, by whom he proposed to prove that the plans and specifications had been disregarded by Provost in material respects; that certain parts of the work and materials had been wholly omitted, and alterations made in other particulars, and that by reason thereof appellant suffered damages to the extent of $2,000. The court rejected the evidence, and defendant excepted to the ruling. The exception is well taken. If the evidence had been admitted it might have shown such gross dereliction of duty on the part of the architect as to raise a presumption of fraud or mistake in the issuing of the certificates. The importance of this point is emphasized by the admission of the architect in his testimony, that he never looked to see whether certain parts of the specifications had been complied with. For this error, which is the only one we think well assigned, the decree is reversed and the cause remanded. Reversed a/nd remanded.