J. E. Salfisberg & Co. v. City of St. Charles

Mr. Justice Willis delivered the opinion of the court. It is clear that the material requirements of the specifications were departed from in the construction of the reservoir and that it did not answer the purpose for which it was intended. Appellant does not deny either of these facts but contends that the final certificate issued by the supervising engineer was conclusive evidence of the performance of the contract, and that it was not essential to his right of recovery upon such certificate that the work was done in accordance with the plans and specifications; that where a contract provides that work shall be carried on under the direction of an engineei employed by the city and the contractor conforms to changes in the specifications ordered by the engineer, the negligence in ordering snch changes, if any, rests solely upon the city; and the court erred in admitting evidence tending to show that the work was done in a defective manner since the contract provided that the engineer should be the judge of the quantity and quality of the work, and that the court erred in ruling on the propositions of law. The final certificate of a supervising architect or engineer is conclusive evidence of the performance of. the contract, in the absence of fraud or mistake connected with issuing or obtaining the same, when the contract provides that it shall be. Barbee v. Findlay, 221 Ill. 251, and cases there cited. “To make such a certificate conclusive required plain language in the contract. It is not to be implied.” Mercantile Trust Company v. Hensey, 205 U. S. 298, and cases there cited. In the case at bar the contract contains no such provision. It provides that the contractor should be paid at the end of each month on the engineer’s certificate for all work performed and materials furnished during the preceding month, less fifteen per cent to be retained until the work was completed and accepted by the city; and that upon such acceptance all money due him would be paid by the city. From the provision that the final payment be retained, in our opinion, it is clear that the intention of the parties was that the final certificate should not be conclusive. Even though the instructions to bidders contains, as claimed by appellant, language which may be construed to mean that the final certificate should be conclusive, the language of the contract controls, as it is the later instrument and signed by both parties. We conclude that the engineer’s final certificate was not conclusive; therefore appellant was not relieved from proving that he had performed the contract substantially in accordance with its terms and those of the plans and specifications, and there was no error in the admission of testimony on behalf of appellee that the work was done in a defective manner. By the terms of the specifications, the engineer in connection with the board of local improvements, was authorized to dismiss incompetent employes, and given control of the work, which was to be done in strict accordance with the specifications. This did not mean that they might give any orders they might desire, but that they were in charge of the work under the plain terms and conditions of the contract, plans and specifications and were to give such orders as in their judgment would carry out the true intent of such plans and specifications. Sanitary District of Chicago v. McMahon & Montgomery Co. et al., 110 Ill. App. 510, and cases there cited. The engineer’s decision was to be final in case of a dispute in regard to the true meaning of the drawings and specifications. There was no dispute as to what the specifications directed or intended, but the contractor and engineer made up their minds to adopt an entirely different method of constructing the wall than was required by the specifications, and acted accordingly. The engineer testified that he told the mayor of the change and that the latter assented. The mayor, however, denied that he so assented, but testified that he always told the engineer to follow the specifications. Moreover, the mayor was neither the city nor the board of local improvements, but was only one of three members of the latter board. It is not claimed that either the board of local improvements or the city council authorized this deviation from the specific directions in the specifications. The engineer might give directions within the limits of the contract, but no further. If he could change its terms in one particular, he could in all. He not only lacked authority so to do, but it was his duty as agent of the city to see that the contract and specifications were not deviated from in any material particular except with the consent of the parties, and to see that they were faithfully carried out. Adlard v. Muldoon, 45 Ill. 193; Sanitary District of Chicago v. McMahon & Montgomery Company, supra. Had the proof shown that the city of St. Charles had accepted the work or that it had been performed in substantial compliance with the contract, plans and specifications and tendered to the city, and that the city had unreasonably refused to accept the same, appellant could recover even though the reservoir did not fulfill the purpose for which it was constructed; but when appellant departed from the specifications, and constructed a wall materially different from that called for in the specifications, even though he did it under the direction of the engineer, he took the responsibility of a failure upon himself; and proof that the reservoir would not have fulfilled the purpose for which it was intended had the plans and specifications been complied with, does not relieve him from such responsibility. As the record discloses sufficient competent evidence to sustain the judgment, we deem it unnecessary to consider appellant’s assignment of error on the ruling of the trial court on the propositions of law submitted. The grounds urged by appellant for a reversal of this judgment are untenable, and therefore it must be affirmed. Affirmed.