Colby v. Interlaken Land Co.

Main, J.

(concurring)—I concur in the views expressed in the maj ority opinion to the extent that the evidence introduced upon the trial in the superior court shows that the building was not completed within the time specified in the contract; but I dissent from that portion of the opinion which holds that the architect had the power, under the contract, to finally determine that question.

It is undoubtedly the accepted doctrine of this, as well as other courts, that, where the parties by their contract constitute an architect, or other named person, an umpire, or arbiter, to determine differences which may arise in the performance of the contract, and provide that his determination shall be final and conclusive, and that such determination shall be evidenced by the certificate of such umpire or architect, the contract will be upheld as binding upon the parties.

In this case, however, the contract does not go that far. It only provides that the completion of the house is to “be evidenced by a certificate” of the architect. There is nothing in the contract which constitutes the architect an arbiter or umpire to determine differences which may arise in its performance. Neither is there any provision that his determination of such differences shall be final and conclusive upon the parties. A contract should not be construed so as to deny the parties thereto, or either of them, their day in court upon any differences that may arise, unless the contract clearly shows that this was the intent of the parties.

Under the contract in the present case, the giving of the architect’s certificate would doubtless be prima facie evidence of the completion of the building; and its refusal, in the absence of fraud or arbitrary conduct, would likewise be prima facie evidence that the building was not completed within the time specified. To hold that a contract which simply provides that the completion of the building shall be evidenced by the certificate of the architect, constitutes such architect an umpire or arbiter, and gives him power to determine differences which may arise, which determination shall be final and conclusive upon the parties, it seems to me is going beyond what the parties by their contract provided.

Morris, C. J., Parker, and Fullerton, JJ., concur with Main, J.