J. G. Wagner Co. v. Cawker

Bardeen, J. One important stipulation in the written ■contract was that no alterations should be made in the work shown or described by the drawings and specifications except upon the written order of the architect. It seems to have been assumed on the trial that this stipulation was sufficiently broad to cover extra work, and was of such a character as that the architect might waive its provisions. There is no dispute but that extra work was performed, and the amount thereof was determined by the architect and included in the final certificate. It is not claimed that such work was done upon the written order of the architect, but it is claimed that defendants waived that provision of the ■contract. Whether the architect had any power to waive contract provisions of that kind is very doubtful; but, defendants having consented that the court should answer question 4 of the verdict without submission of the fact to the jury, that question is not now before us for decision. Permitting the court to answer that finding in the affirmative precludes the defendant from raising any objection to the finding at this time. A much more serious question arises regarding the answer to the sixth question. There is absolutely no evidence in the case that the defendants have personally done anything — 538 — from which a waiver of the requirement regarding making claim for an extension of time can be argued. The contract provides that the plaintiff should complete the entire framework of the building by October 9th, and complete all work by November 15th. In case of failure so to do the plaintiff was to allow $50 per day as liquidated damages for every day after said last-mentioned date that the work remained unfinished. Should the plaintiff be delayed by the act, neglect, delay, or default of the owner, architect, or any other contractor, then the time fixed for the completion of the building was to be extended for a period equivalent to the time so lost, but no such allowance was to be made unless a claim in writing therefor was presented to the architect within twenty-four hours of the occurrence of such delay, and the duration of such delay was to be certified toby him, subject to an appeal to arbitration. It is admitted that no claim in writing for such delay was ever presented to the architect. It is also true that plaintiff had no communication with the defendants on the subject prior to the final completion of the building. The plaintiff rests its failure to comply with this condition of the contract upon a conversation had by its general manager with the architect during the progress of the work, in which the latter told him that it would not be necessary to give a written notice or demand for additional time. It seems to have been assumed on the trial that the architect had power to waive performance of these conditions of the contract. The importance of this stipulation, as well as its purpose, is manifest. The very contest that has arisen in this case demonstrates the necessity of some such cautious provision. Disputes frequently arise between different pon tractors, or the owner and the architect, as to responsibility for delays in the work. Owners are very much in the power of contractors and architects. To avoid the uncertainty of verbal disputes, and to prevent the contractors from making claims — 539 — for delay after tbe building has been finished, is clearly the purpose of such provisions. They are for the benefit of both, especially for the owner. The plaintiff knew that it could have no claim for delay for any reason unless it made a claim in writing within twenty-four hours after jts occurrence. If, relying on the assurance of the architect, it chose to go on with the work without placing itself within the protection of the contract, it must bear the consequences, unless we can say the architect had authority to waive this condition. As we have already said, the purpose of this stipulation was to protect the defendants from stale claims for delay, which might be based upon oral understandings, and made when it might be difficult to prove the facts in relation thereto. The giving of the notice was a condition precedent to any authority on the part of the architect to act. The latter was not a general agent of defendants. He had only such authority as was given him under the contract. Thus, in California an architect, without special authority conferred by the written contract, was not authorized to receive notice of an assignment ‘of a building contract. Renton, H. & Co. v. Monnier, 77 Cal. 449. He has no power to bind the owner for extra work unless it is done as the contract prescribes. Baltimore C. Co. v. Coburn, 7 Md. 202; Starkweather v. Goodman, 48 Conn. 101. See Condon v. Jersey City, 43 N. J. Law, 452; Sutherland v. Morris, 45 Hun, 259; Fitzgerald v. Moran, 141 N. Y. 419. Where the contract provided that no claim for extra work should be allowed “ unless the same should he done in pursuance of a written order from the engineer in charge, and the claim made at the first settlement after the work was executed,” it was held that the engineer had no power to alter or change the contract, and no allowance for extra work could be made without proof of performance of the conditions precedent in the contract. Woodruff v. R. & P. R. Co. 108 N. Y. 39. In — 540 — Thayer v. V. C. R. Co. 24 Vt. 440, as between tbe company .•and their contractors, the contract seems to have expressly denied the power of the engineer to bind the company for extra work, except in a particular mode, in writing, and then th^claim to be presented and adjusted in a prescribed time and mode. It was held there was nothing in the general duties of the engineer to authorize him to vary the contract and employ others to do such work. Vanderwerker v. V. C. R. Co. 27 Vt. 125, was a similar case, in which the court said: “No one could for a moment be led into any misapprehension as to the extent of the engineer’s authority to ■charge the company by varying the existing conditions or making new ones. The engineers were there for no such purpose, and they had no such agency, except under specific limitations and restrictions, and they did not, as to this item, assume to do any such thing.” See, also, Vanderwerker v. V. C. R. Co. 27 Vt. 130; Lewis v. Slack, 27 Mo. App. 119. In Dodge v. McDonnell, 14 Wis. 553, where one had employed an architect to make plans for a house and do such other acts as architects usually do as such, and had engaged a contractor to do the work and furnish the materials, and had placed money in the architect’s hands to be paid on the contractor’s order, it was held that this did not warrant a finding that the architect was the general agent of his employer, and he had no authority to bind him by new contracts for materials with other persons. See Campbell v. Day, 90 Ill. 363. In Starkweather v. Goodman, 48 Conn. 101, a builder made a written contract to furnish the materials and build a house for defendant according to definite plans and specifications and for a fixed sum, all the materials and work to be accepted by an architect named, who Avas to superintend the construction. The builder, under the direction of the architect, did certain work variant from, and in addition to, the specifications, which increased the cost and value of the house. Held that — 541 — the ordering of the work was beyond the scope of the architect’s agency, and that the defendant was not liable to the-builder for it. 1 Hudson, Building Cont. 14, says: “ An architect or engineer has no general authority to-dispense with, waive, vary, or alter the conditions of a building contract. His duty is to see that it is faithfully fulfilled according to its terms; but it may be varied by the parties themselves, who are entitled to strict compliance therewith, or by the architect under special authority given-him on that behalf.” This rule was applied in Canada in Jones v. Reg. 7 Can. Sup. Ct. 570, which contains a careful discussion of both the-English and American decisions. The decisions cited indicate the. almost unvarying rule-that, without express authority, the architect cannot waive important conditions in his employer’s contract. The parties, themselves have that power, and the courts have frequently recognized it. Bannister v. Patty's Ex'rs, 35 Wis. 215; McPherson v. Rockwell, 37 Wis. 159; Boden v. Maher, 105 Wis. 539, and Wambold v. Gehring, 109 Wis. 122,—are cases in. this court. A proper construction of the contract makes the-giving of the notice to the architect a condition precedent, to the right of plaintiff to claim an extension of the time for the completion of the building. It was a condition the-architect had no power to waive. There is no claim that, the defendants have done anything to waive it. It being admitted that the work was not finished within the time limited by the contract, the defendants were entitled to damages for the delay. The contract stipulated $50 per day as liquidated damages. We are unable to say from the evidence whether that sum is so disproportionate to the actual injury suffered as that it should be construed to be a mere penalty, or as damages fully liquidated. Seeman v. Biemann, 108 Wis. 365. The trial court seems to-have treated it as liquidated damages and denied defendants, the right of showing the rental value of the building, be — 542 — cause that sum. was stipulated in the contract. The discussion of this question in the case last above referred to renders it unnecessary at this time to further elaborate it. The uniform rule is that the circumstance that damages are stated in the written contract does not absolutely control the courts. If the sum so fixed is largely in excess of actual damages, they do not hesitate to pronounce it a penalty, and then proceed to grant such as are fair and reasonable under the circumstances. It is possible that on a new trial the defendants may be found entitled to damages for delay in completing the building. The court should therefore keep this principle in mind and permit only such recovery as is warranted by the facts, within the rule of the Seeman Case. The jury found that plaintiff completed the building on November 27th, a delay of twelve days. The defendants claim a delay of thirty-two days. Plaintiff’s testimony is quite inconclusive on the subject. The manager testified the building was completed on the day mentioned; yet there appears in the record a letter written by him on that day asking the architect for an estimate on account, in which he says: “ We figure that five hundred dollars will complete all the work left to do under our contract, and expect to get an estimate for the baLance due, less that amount and the retain age.” These two statements do not harmonize. If there was yet work of the value of $500 to be done, it could not be well said that the building was finished. In view of the testimony of defendants that the building was not completed until some time afterwards, the finding of the jury as to date of completion had very little to rest upon. It was clearly against the evidence. The evidence offered to impeach the certificate of the architect was not of the character demanded in this class of cases. In Hudson v. McCartney, 33 Wis. 331, this court laid — 543 — clown the rule that such evidence must be of such a character as to show that the action of the architect was grossly and palpably perverse, oppressive, and unjust. Or, in other words, to impeach the action of the architect, the evidence must be clear and convincing and point with reasonable certainty to mistake, fraud, or collusion. The substance of the evidence upon which the finding of the jury is based is that the architect told Mr. Wagner that he, personally, would not insist upon a deduction for delay, but that the defendants had given him thirty-two days as the time the finishing of the building was delayed, and insisted that he must deduct that many days from the contract price; that he expected to get more work from them and would have to yield to their demands. Such evidence does not show collusion. The defendants -were merely insisting on their legal rights. It was not shown that they brought any pressure to bear upon the architect, or used any undue influence to control his action or judgment. On the other side we find absolute and positive denials of the witnesses’ statements, and assurances of the utmost good faith. The evidence as a whole is far from being clear, satisfactory, or convincing. Indeed, it can hardly be said to reach beyond mere suspicion. We see no error in the other assignments raised and discussed. By the Oowrt.— The judgment is reversed, and the cause is remanded for a new trial.