Mercer v. Harris , 4 Neb. 77 ( 1875 )

Gantt, J.

Several errors are assigned as reasons for the reversal of the judgment in this case, and they will be examined without any regard to the order in which they appear in the record.

The main ground of defense was that the Rose Brothers did not perform their work in the manner required by the contract, and did not erect and complete the building in a good, sufficient and workmanlike manner. The plaintiff in error offered in evidence the deposition of J. E. Richmond, which was objected to and the objection sustained; he also called Thomas Holmes as a witness and asked him several questions which were objected to, and the objection sustained. The object and purport of this testimony was to show the character and quality of the material furnished and the work done by the contractors, the Rose Brothers, and the plaintiff in error insists that the court erred in rejecting this testimony. But in regard to the ruling of the court upon these points, it will only be necessary to observe that by the terms of the contract between Mercer and Rose Brothers, the latter were required to “erect and finish the building agreeably to the drawings and specifications made by Charles F. Driscoll, architect, to the satisfaction of, and under the direction of said, architect, to be testified by a writing or certificate under his hand.” ELence, by the terms of the contract, Driscoll, the architect, was not only made the sole arbiter to decide between the parties to the contract, as to the character and quality of the material furnished for and work done on the building, but the plaintiff in error having required the work to be done under the direction- of this architect, he thereby constituted‘him his agent to superintend the erection of the building. So the only question upon these points is, can the plaintiff in error stand upon or abandon his own contract in this respect, at his own pleasure? We think not. lie is bound by his contract, rtnless he can allege and maintain fraud as between the architect and the contractors ; but not having done this, the testimony of these two witnesses, in regard to the subject matter about which they were called to testify, was properly rejected.

It is also insisted that the court erred in admitting in evidence the statements or certificates of the architect, offered by the defendants in error. There are three of these writings testified by the architect. The first is an order drawn by the architect on Mercer, in favor of Rose Brothers, for the amount of the installment then payable under the terms of the contract. This order was paid by Mercer, to whom the contractors receipted for the amount. The second was a similar order, and was like wise paid and receipted. The third “writing” is headed “statement,” and sets forth the contract price of' the building and some extra work, and also the payments previously made, and then follows the order of the architect on the plaintiff in error, in favor of Rose Brothers, for the amount found due as “balance in full of contract price.” It is not alleged that these certificates or “writings” were obtained by the contractors through fraud or by mistake of the architect, and, hence, it must be presumed that they were executed by the architect in the honest discharge of his duty. Odiosa et inhonesta non sunt in lege praesxomanda, is a well established legal maxim. So, it is said, that “the law presumes every man, in his private and official character, does his duty, until the contrary be proved; and it will presume all things rightly done,” until the presumption is overturned by sufficient proof. 1 Dom., v. 3, tit. 6, sec. 4, art. 7. 12 Wheat., 69. The King v. Hawkins, 10 East, 211. Hartwell v. Root, 19 Johns., 345.

The contract price was to be paid in installments as tlie work progressed towards completion, and the right of payment was made to depend upon the obtaining of tlie certificate, signed by the architect, under whose direction and to whose satisfaction the work was to be done, to be testified by wilting or certificate under liis hand. The evidence shows that tlie architect, if not daily, was frequently present during the progress of the work in the erection of the building, and that he gave the “writing,” testified under his hand, as the work advanced. Now, do these writings, or certificates, satisfy the conditions of the contract? We think under the circumstances of this case they do. It is very clear that the contract does not prescribe any form of the “writing” to be signed by the architect, and therefore it was necessarily left with him to adopt his own form, which he did; and the plaintiff in error, by paying the money and taking the contractors receipt on the first and second “writing,” signed by the architect, accepted the form he adopted. The Rose Brothers could not require the payment of this money without this “writing,” signed by the architect, and they were not entitled to the “writing,” until the work was done to his satisfaction. ITe was the sole arbiter between the parties; the work was done under his direction; it was his duty to withhold the “writing” until the work was done to his satisfaction, and it must therefore be assumed that it was so done. A^d when the architect issued the third “writing,” with the order for the payment of “the balance in full of the contract price,” he thereby testified in effect that the building was completed to his satisfaction, and the issuance of this “writing” seems to have ended his duties under the terms of the contract, for then there was nothing left for him to do.

In Stewart v. Keteltas, 36 New York, 392, which was a case upon a contract, in regard to the powers and duties of the architect, in all respects similar to the one in the case at bar, the court say; “it was not necessary that the architect’s certificate should contain a statement that the work was done agreeable to the drawing and specifications, within the time, in a good, workmanlike, and substantial manner, under his direction and to his satisfaction.”

"When a man contracts with a builder to erect a dwelling house for him, selects an architect under whose direction he entrusts the superintendence of the work, and requires it to be done to the satisfaction of said architect, to be testified by writing under his hand, and such architect performs such duty, being frequently present during the erection of the building, draws orders on the owner for the payment of the installments of the contract price as they become payable, and when the house is completed, makes a final statement of the matter in writing, declaring the balance due, and draws an order on tbe owner in favor of tbe builder, for tbe payment of the balance in full of contract price, we think tbat a certificate, made by tbe architect long after this has been done, stating tbat be could not, without detriment to bis reputation, “sign a certificate for tbe work being done in accordance with plans and specifications” should not be permitted to be used in evidence by tbe owner of tbe building. Such certificate, without any averment and proof of fraud or mistake, would carry with it strong suspicions of collusion between tbe owner and tbe architect. Hence, under tbe pleadings and circumstances of this case, we think tbe court properly rejected tbe one offered in evidence by tbe plaintiff in error.

Again, it is complained tbat tbe court permitted the jury to take with them during their retirement, the “writing,” signed by tbe architect, giving an exact statement of tbe account between Mercer and tbe Rose Brothers. It was admitted by plaintiff in error on tbe trial, tbat this “paper set forth correctly all tbe payments which bad been made thereon.” In the consideration of this question, when we bring into view tbe fact tbat this “writing” was made by Mercer’s agent, under whose direction tbe building was erected, and to whose satisfaction tbe work was to be done, it seems clear tbat in contemplation of law, this “writing” was in legal effect tbat of Mercer himself. It could not mislead the jury, and, although we do not now pretend to decide upon the general question or lay down any rule in respect to tbe court permitting tbe jury to take any documentary evidence with them during their retirement, yet under, tbe pleadings and proofs in this case, we think tbe subject-matter of this complaint is not sufficient of itself, to disturb tbe verdict of tbe jury, or reverse tbe judgment thereon.

Judgment affirmed.

Mr. Justice Maxwell concurred. Lake, Ch. J., having tried tbe cause in tbe court below, did not sit.