Fisher v. Burroughs Adding Machine Co.

Ostrander, 0. J. Upon a former trial, judgment in which was reversed by this court (157 Mich. 126 [121 N. W. 756]), defendant introduced no testimony, the trial court being of opinion that a certain agreement reciting that a sum was due to plaintiff from defendant, and the payment of the sum concluded the plaintiff. It was held in this court that if the sum stated in the said agreement to be due was arrived at by mistake, or the agreement was brought about by deception or fraud, plaintiff ought not to be bound. Upon a second trial, the record of which is now before us, it appeared that, with one exception, as to each disputed item of account, whether representing a charge by the plaintiff or a countercharge by defendant, the architect who was made the final arbiter by the terms of the building contract has determined, either that plaintiff is not, or that defendant is, entitled to the amount claimed. All items, whether of charge or of countercharge, which were approved by the architect were included in the settlement of the parties and paid. There is no testimony tending to prove that the architect acted fraudulently or arbitrarily in refusing to plaintiff a certificate for the amount he claims to be due to him. Plaintiff’s contention is that the action of the architect amounted to a legal fraud. This contention can be supported only upon the ground that the architect has not found to be due as much as the plaintiff claims, and that a jury has agreed with the plaintiff. But the parties made the architect, and not a jury, the final judge. The item of $59, charged to defendant by plaintiff, which is the exception above noted, was for the premium paid for a surety company bond. The building contract did not require the contractor to give a bond. The architect demanded one, and the plaintiff furnished it. Counsel for plaintiff have not indicated the theory according to which the [398] defendant would be liable to repay this sum to the plaintiff, and no such theory occurs to me. Nor can it be said that, because an agreement was made concerning the amount due to plaintiff, . the defendant waived the provision in the contract making the architect the final arbiter. As has been stated, the items entering into the computation which was made were, in fact, with the exception which has been noted, items which the architect had passed upon. In other words, defendant agreed to pay what the architect had determined it ought to pay and no more. It paid just the amount which a formal certification would have shown to be due, and there was neither attempt nor purpose to pay more or less, or to allow or disallow items and claims independent of the judgment of the architect and the finality of his decision. It follows that if there are items or contentions which have not been submitted to and allowed or disallowed by the architect, his certification is still required. It is not produced. No such items are shown. In my opinion, there was no question for the jury, the several motions of defendant made when the plaintiff had rested should have been granted, and a verdict for the defendant directed. The judgment should be reversed and no new trial granted. Hooker, Moore, McAlvay, Brooke, Blair, and Stone, JJ., concurred with Ostrander, O. J.