Smith v. . Brady , 17 N.Y. 173 ( 1858 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Assuming that the contracts had been so far performed as to justify the plaintiff in treating them as substantially executed, as I am inclined to think they were, yet the final payment for the work was to be made when it was completed and a certificate of the architects to that effect obtained. The parties have seen fit to make the production of such a certificate a condition precedent to the payment. The plaintiff is as much bound by this part of his contract as any other. It is not enough for him to bring his action and say that he has completed the work which he undertook to do. He has agreed that the architects named should decide whether the work is completed or not. He cannot now withdraw the decision of this question from them and refer it to the determination of a legal tribunal. (Butler v. Tucker, 24 Wend., 447, and casesthere cited.)

Had it been shown by the plaintiff that he had made application to the architects for the requisite certificate, and that they had obstinately and unreasonably refused to certify, it might have been proper, perhaps, for the plaintiff to establish his right to recover by other evidence. An opinion to this effect is expressed by McLEAN, J., in The United States v. Robeson (9Peters, 319). However this may be, it is not pretended in this case that the plaintiff ever made an effort to procure the certificate. The referee merely finds the fact that "the architects had not given certificates that the work was all done and finished."

The referee has found that the defendant took possession of the cottages and appendages, without objection at the time, and appropriated the same to his own use, and it is insisted that, if the production of the architects' certificate was a condition precedent to the right of the plaintiff to bring his action for the balance due upon the contracts, yet the defendant has waived this condition by accepting the work without objection; but it is a sufficient answer to this position to say that, whether or not the performance of the condition in question was waived was a question of fact to be determined by the referee from the evidence before him, and no such fact has been found by him. (Vanderbilt v. The Eagle Iron Works, 25 Wend., 665.)

Thus far I have considered the case with reference to the final certificate of the architects, but the provision in the contracts which requires all questions relating to extra work and omissions or deficiencies to be submitted to the architects, and declares their decision to be final and conclusive in the premises, deserves to be noticed. It is not pretended that the plaintiff ever offered to make this submission in relation to his claim for extra work. The referee has wholly disregarded this provision, and tried the case as though it was not to be found in the contracts. In this I think he erred. To avoid a protracted and expensive litigation, such as this has proved to be, the parties agreed that, in respect to all disputes between them in relation to the work, the architects should be the ultimate arbiters. All claims of the plaintiff for work not embraced in the specification were to be submitted to them, and their judgment was to be final. All claims of the defendant for deductions or allowance on account of the omission of the plaintiff to perform the work according to the contracts were to be determined in the same manner; and thus, with the award of the umpires upon the claims which the parties might mutually make against each other, and their certificate showing the completion of the work, all ground for controversy would be removed. This was the manifest intention of the parties when they made their contracts. It was wholly overlooked or disregarded on the trial.

I have said enough, I think, to show that the case has been tried upon an erroneous theory, and that the judgment should be reversed. And yet, in reference to another trial, it may not be useless to notice one or two decisions made by the referee upon questions of evidence, which are deemed to be erroneous.

One of the architects mentioned in the contracts, and who had examined the work, had described in his testimony a great number of defects and omissions. He was then asked what it would cost to make the buildings conform to the contracts, plans and specifications. The question was objected to, and the objection sustained. I think the witness should have been allowed to answer the question. It was a legitimate mode of ascertaining the damages to which the defendant was entitled by reason of the failure of the plaintiff to do what he had agreed to do. He had agreed to construct houses according to certain plans and specifications. The defendant had entitled himself to have such houses constructed, and was not bound to allow the plaintiff to substitute anything else in their place. Just so far as the houses built by the plaintiff differed from those he had agreed to build, just so far the defendant had a right to have them altered at the expense of the plaintiff. This was the true rule of damages. The defendant had a right to know, therefore, from one competent to speak on the question, what it would cost to make these alterations. (Ladue v.Seymour, 24 Wend., 60.) For the same reason I think the witness should have been allowed to state what in his opinion was the difference in value between the cottages as they were built by the plaintiff, and the same cottages if completed according to the contracts. There was no pretence that he was not qualified to testify upon such a question.

The plaintiff, against the objection of the defendant, was allowed to inquire of a witness whether the houses without certain joists and beams, which were required by the specifications but had been omitted by the plaintiff, were sufficiently strong for the character of the buildings. This testimony should have been excluded. It was entirely immaterial whether the houses as constructed were sufficiently strong or not. The defendant had a right to prescribe the manner in which he would have the houses constructed. He had agreed to pay the plaintiff his price for so constructing them. It did not lie with him to say that another mode of construction would do just as well. The admission of such testimony tends to show that the referee misapprehended the principles of law applicable to the case.

For all these reasons I am of opinion that the judgment of the Supreme Court should be reversed, and a new trial granted with costs to abide the event.

SELDEN, DENIO, ROOSEVELT and PRATT, Js., concurred in this opinion.