Robertson v. King

Rotiieock, ¿T. — Without referring to the testimony of the witnesses in detail we may say that it appears by what must be regarded as a decided preponderance of the evidence that the brick used in the interior walls of the building, and in [727] the inner and middle course of the outside walls, were very many of them not what is denominated by masons as “good hard brick” nor “well-burnt hard brick.” A large proportion of them was what some of the witnesses designate as salmon brick, which are not classed as hard brick. It also fairly appears from the evidence that, salmon brick are ordinarily used upon inside walls, and upon inside and middle courses of outside walls. It also appears in the evidence, without conflict, that the salmon brick, or such as were in part used in the building, are of considerably less value than well burnt, hard brick. It follows that- if the plaintiff was bound by his contract to use hard brick in the construction of the walls, the use of any considerable number of soft brick would not have been a substantial compliance wdth the contract, so as to entitle him to recover notwithstanding slight and unimportant, and technical deviations, omissions or defects as was held in Sinclair v. Talmadge, 35 Barb., 602, and as intimated in Fauble & Smith v. Davis, 48 Iowa, 462. If, therefore, the plaintiff is entitled to recover the contract price for the soft brick laid in the walls, it must be by reason of something outside of the written contract. It is claimed that before the contract was entered into, and before the plaintiff bid upon the work, in a certain conversation between the plaintiff and said Foster, the latter put a construction upon the specifications as to the quality of brick different from that now claimed by the defendant, and that under said construction and decision of the architect the brick used in the walls were such as were contemplated by the architect, and that defendant is bound by his acts and representations. But it does not appear that the defendant knew that any other construction was put upon the specifications than what the language thereof naturally imported. It was his right to require just such a quality of brick put into the building as he desired. There was no occasion for ány construction or interpretation of the specifications in this particular. The language was plain, and explained itself. The plaintiff entered [728] into the contract and made the specifications a part of his undertaking, and he cannot be permitted to show by parol that something other or different was contemplated by the parties. Even conceding that the architect was the agent of the defendant, the evidence shows beyond question that the defendant while the walls were being erected constantly objected to the quality of the brick. It is claimed that he was unreasonable, and refused to comply with a request of the architect to select a certain specimen of brick which should be the standard of the quality to be used. It was not his duty to select the brick. He had the right to stand by his contract. It was the duty of the plaintiff to use hard brick, and without calling the defendant to his asssistance to determine their quality. It is said the architect was satisfied with the plaintiff’s performance of the contract, and unreasonably refused the certificate. It appears to us it is immaterial whether lie was satisfied or not. If the contract was not in fact performed the plaintiff was not entitled to a certificate. In conclusion we think the court correctly held .that the plaintiff did not comply with his contract, and in our opinion the damages allowed by reason of his failure were fully warranted from the evidence. Apeirmed.