Scott v. First National Bank ( 1909 )

Mr. Justice Smith

delivered the opinion of the court.

The controversy here involved arises from the attempt on the part of the architect and owner to fix damages for delay in the work, and deduct the amount thereof from the balance due plaintiff in error on the completion of his contract.

The only authority for this in the contract is found in article 6 quoted above. Upon a reading of that article it will be observed at once that the obligation to complete the several portions of the work as specified, is conditioned upon the walls of the building being in readiness to receive plaintiff in error’s work at the specified times. No forfeiture or penalty can be exacted under the provisions of the contract unless the walls were in readiness as therein provided. There is no provision in the contract which we have been able to discover which authorizes or provides for a penalty of $25 a day for delaying the work of other contractors or for delaying the completion of the building, other than for a failure to place the basement columns and first floor beams in the building on or before October 15, 1906, and to complete the work on or before November 15, 1906; and this provision is enforceable only, if the walls of the building were in readiness to receive the work of plaintiff in error. If the walls of the building were pot in condition to receive the work on the days named, no expressed limitations as to the time of doing the work or any part of it are made in the contract.

The evidence in the record shows that the walls were not ready to receive plaintiff in error’s work at the dates specified. As to this fact it may be said on the record that it is not controverted. It follows that if the remarks appended to the architect’s certificate can be treated or considered as a part of the'certificate, the contract does not confer the power on the architect to declare a forfeiture of $25 per day for delaying the work on the building, and deduct the amount thereof, as liquidated damages, from the amount due plaintiff in error, the condition on which such a forfeiture was enforceable having never existed. We infer from the form of the certificate, and the fact that the appended statement was not formally incorporated in the certificate and a deduction made from the amount due and signed by the architect, that he did not construe the contract as giving him the power to make the deduction. But, however that may be, we do not think the appended remarks are a part of the certificate, and therefore there was no ground or basis for defendant in error to refuse to pay the amount of the face of the certificate on presentation thereof to it for payment.

Furthermore, upon consideration of all the evidence, we do not think it is shown that plaintiff in error delayed the completion of the building twelve days. In our opinion the trial court erred in not finding for the plaintiff in error and against the defendant in error for the sum of $517.62, the face of the certificate, and costs, and rendering judgment therefor. The judgment must therefore be reversed and a judgment rendered in' this court for $517.62 and interest thereon from the date of the demand for payment, amounting to $582.37. Reversed and judgment in this court.