2 Smith v. Peters, L. R. 20 Eq. 511.

3 Leake, 2d ed. 640; Thurnell v. Balbirnie, 2 M. & W. 786; Clarke v. Westrope, 18 C. B. 765. See Fuller v.

Bean, 34 N. H. 304; Borden v. Borden, 5 Mass. 67.

4 Brown v. Foster, 113 Mass. 136; Zaleski v. Clark, 44 Conn. 218; Gray v. R. R., 11 Hun, 70; Gibson v. Cran-ege, 39 Mich. 49; and cases cited infra, sec 594.

5 Infra, sec 594.

6 Panama Tel. Co. v. India Rubber Co., L. R. 10 Ch. 515.

be strictly enforced. The owner has no right to complain, since the architect was selected by him, and charged by him with this very power; the builder has no right to complain, since he took the work on this very condition. No matter how arbitrary may be the action of the architect in refusing to give the certificate required by the contract, yet, if he persists in his refusal, the builder cannot recover on the contract price.1 It is otherwise when the architect in collusion with the owner refuses to give the certificate, in which case the owner and the architect may together be liable in an action for conspiracy, or the owner may be made liable on the contract being estopped by his own fraud from setting up the refusal of the architect to certify.2 The converse is also true: a settlement made by the architect collusively with the builder will not bind the owner.3 - When performance of the archi-

1 Leake, 2d ed. 640; Benj. on Sales, 3d Am. ed. sec 575; Morgan v. Birnie, 9 Bing. 672; Grafton v. R. R., 8 Ex. 699; Clarke v. Watson, 18 C. B. N. S. 278; Goodyear v. Weymouth, 1 H. & R. 67; 35 L. J. C. P. 12; Ferguson v. Galt, 23 Up. Can. C. P. 66; Schenke v. Rowell, 7 Daly, 286; Smith v. Briggs, 3 Denio, 73; Whiteman v. Mayor, 21 Hun, 117; North Lebanon R. R. v. McGrann, 33 Penn. St. 530; Reynolds v. Caldwell,.

51 Penn. St. 298; O'Reilly v. Kerns,.

52 Penn. St. 214; Condon v. R. R., 14 Grat. 302; Lull v. Korf, 84 111. 225; Bean v. Miller, 69 Mo. 384.

2 Batterbury v. Vyse, 2 H. & C. 42; Ludbrook v. Barrett, 46 L. J. C. P. 798, cited Leake, 2d ed. Add. xcv.; Hudson v. McCartney, 33 Wis. 331; Sullivan v. Byrne, 10 S. C. 122. As to collusion, see Panama Tel. Co. v. India Rubber Co., L. R. 10 Ch. 515, cited supra, sec 593; and see. supra, sec 279. In Hudson v. McCartney, 33 Wis. 331, Dixon, C. J., said: "If fraud in the arbiter can ever be established by proof that he refused to certify the execution of the work when the same had been duly and properly performed, it can only be in those cases where the refusal is shown to have been grossly and palpably perverse, oppressive, and unjust, so much so that the inference of bad faith and dishonesty would at once arise when the facts are known." 3 Supra, sec 279. In Tetz v. Butter-field, S. C. Wise. 1882, 4 Wise. Leg. News, 197, Taylor, J., giving the opinion of the court, said: " The evidence offered by the defendant in this case, if given, would have tended to prove such a state of facts as would at least have justified an inference of bad faith on the part of the architect in accepting the work. Knowingly accepting unsound and rotten materials • where the contract called for sound materials would certainly tend to prove bad faith, and if the evidence had shown that he had permitted large quantities of such material to be used, when the contract called for sound and perfect materials, it would be almost conclusive evidence of that fact. Proof that a few pieces of imperfect material had been used, or that in some slight matters the workmanship had not been in strict accordance with the terms of the tect's duties is made impossible by the vendee, this avoids the contract.1 - The general rule above stated obtains in equity as well as in law.2 A builder, also, who undertakes to finish certain work ordered by an architect by a specific time, cannot, after undertaking the work, dispute the feasibility of performance within the time, and is liable for the delay.3 When, also, it is provided by the contract that the owner's liability should cease upon a default by the builder determined by the architect, the architect's decision on the question of default binds the builder.4 Even a forfeiture of what is due on prior work may be thus determined, so that the architect's decision imposing such forfeiture is final.5 - The certificate must be exact and conform to the condition.6 - The principal is not bound by the architect's decision in a matter not within the architect's range of authority. Thus, in a case in Connecticut in 1880,7 B. made a written contract to furnish materials and build a house for C, according to definite plans and specifications, for a fixed sum of money. All materials and work were to be accepted by a certain architect, who was to superintend the construction. B., under directions of the architect, did extra work. It was held that the direction and approval of such work was beyond the scope of the architect's agency, and that, therefore, C. was not liable thereupon.8 contract and specifications, would not be sufficient to avoid the acceptance of the work by the architect, nor establish bad faith on his part; but it seems to us, if the defendant had proved all the matters set out in his answer to their full extent, it would have shown such a want of faithfulness on the part of the architect as should render his acts ineffectual to bind the defendant.".

1 Clarke v. Westrope, 18 C. B. 765; see supra, sec 312; infra, sec 603.

2 Scott v. Liverpool, 3 D. & J. 334; De Worms v. Mellier, L. R. 16 Eq. 554; M'Intosh v. R. R., 2 Mac. & G.74.

3 Jones v. St. John's Coll., L. R. 6 Q. B. 115.

4 Roberts v. Bury, L. R. 5 C. P. 310; Wadsworth v. Smith, L. R. 6 Q. B. 332.

5 Faunce v. Burke, 16 Penn. St. 469. That an architect's certificate can be by parol, see Roberts v. Watkins, 14 C. B. N. S. 592; though it is otherwise when the contract requires the certificate to be in writing. Lamprell v. Billericay Union, 3 Ex. 283; Russell v. Bandeira. 13 C. B. N. S. 149. When the written order by the engineer is made an essential to a recovery for extra work, the mere approval by the engineer without such order will not sustain a recovery. Tharsis Co. v. McElroy, L. R. 3 Ap. Ca. 1040.

6 Smith v. Briggs, 3 Denio, 73.

7 Starkweather v. Goodman, 48 Conn. 101.

8 See to same effect, Downey v. O'Donnell, 86 111. 49.

And where a third party is made arbiter, his decision must be conformed to. Thus, on a contract to guarantee the payment of a certain sum in consideration of the building of a county bridge at a place to be determined by viewers, there can be no recovery if the location determined by the viewers is changed.1 - As has been already seen, if the arbiter, in collusion with one party, decides improperly in favor of the other, this does not bind the former.2