Pormann v. Walsh

PiNNey, J. 1. The evidence clearly sustains the findings of the circuit court. The only question worthy of particular consideration is whether the plaintiff was entitled to recover $125, the unpaid portion of the contract price which was to be paid to the plaintiff for performing the contract, and what effect should be given to that part of the contract which provides “ that the work done and materials furnished shall be to the entire satisfaction of Fred. G-raf, who is hereby declared to be the superintendent of the building, and to the satisfaction of the ownerf and the certificate of the architect that the. contractor was entitled to specified payments “subject to owner’s approval.” It is contended on the part of the defendant that by the contract such approval on his part was a condition precedent to recovery for work done under it, as well as the certificate of the architect. We know of no reason why the parties might not lawfully make the contract in this respect as they did in the present case, or why it should not .be enforced as made. In Hudson, Building Oont. (2d ed.), 274, it is said: “Work is sometimes agreed to be done to the approval of the engineer and the employer, and sometimes to the approval of the engineer only. In the former case the engineer may disapprove or approve unreasonably, and his approval would be a condition precedent to payment. The only benefit to a building owner of such a condition is that if the architect approves unreasonably, to the detriment of the building owner, the building owner might still disapprove, bat only reasonably; and it would, seem unreasonable for him to disapprove (fraud or collusion apart) when his architect has approved, inasmuch as by the selection of the architect he has fixed the standard by which. 363 tbe work is to be tested. Tbe builder could bring an-action (in tbe event of the employer’s disapproval), and it would be a question for tbe jury whether the work was reasonably in accordance with the contract.” The evidence disclosed abundant cause for the owner’s refusal to withhold his approval of the work. The plaintiff insists that the certificate ■of the architect is conclusive, and that it is not a condition precedent to a recpvery of the unpaid portion of the contract price that the work had been done “ to the satisfaction of the owner.” We do not see any ground upon which the court can refuse to give full force and effect to this provision of the contract as the parties have written it. If the contractor fairly obtains the certificate of the architect, the building owner cannot unfairly and capriciously withhold his approval or satisfaction with the work, so as to defeat a recovery for proper performance. 2. With respect to the $125 claimed by the plaintiff, he substantially entered into a new agreement by signing the indorsement on the last certificate, to the effect that the amount of that certificate ($200), which was paid to him, was received “on the express understanding that the defective plastering will be made perfectly satisfactory before any further payment is made.” We are unable to see any ground upon which the plaintiff, in view of the circumstances, can recover the $125 claimed, and it follows that the judgment of the circuit court must be affirmed. By the Court.— The judgment of the circuit court for Milwaukee county is affirmed.