Examples of conditions precedent, the non-performance of which suspends the right of action until such conditions are performed, are often found in building and construction contracts. Under a provision that payment is to be made upon certificates to be given by a third person, such certificate is, when given, conclusive, in the absence of fraud or evident mistake.1 A provision, that an estimate of work is to be made by an engineer,2 or by an architect,3 and that a certificate must be obtained from such engineer or architect that the work done is done in a proper manner, before the contractor can recover for such work, is generally upheld as a valid covenant4 The fact that the engineer is in the employment of one of the parties to the contract, and is therefore possibly biased in his judgment,5 or that he is a stockholder,6 or a former member of a board of directors,7 of the adversary party to the contract, does not make such provision unenforceable. Under such clause the obtaining of such certificate is a condition precedent to any recovery by the contractor upon his contract unless the obtaining of such certificate is excused or waived in some manner.8 So, an approval by a state board,9 or by a highway inspector,10 may be made a condition precedent, to recovery on the contract. So, if a contract of sale to the United States provides for payment "upon producing duplicate specified certificates of the commanding officer," no recovery can be had unless such certificates are produced or a legal excuse shown for not producing them.11 The certificate of the architect may be required as a condition precedent for pay for extra work.12 On the one hand, in the absence of fraud or evident mistake, the certificate given by the architect or engineer is binding upon the contractor.13 Thus the architect's decision that certain paving was not constructed in accordance with the contract14 is conclusive. After the engineer or architect has once decided the question, which under the terms of the contract he was to decide, and has given his certificate passing upon such fact, he cannot reconsider such question and give a certificate to the contrary effect ;15 nor can his successor,16 nor another engineer in the owner's employ.17 An engineer cannot by approving stone to be quarried from a specified quarry, preclude his successor from rejecting the stone actually offered under such contract.18 After the certificate has once been delivered to take effect, the subsequent fate of the instrument is immaterial. Hence, if the contractor re-delivered the certificate to the architect, such certificate is still binding upon the owner.19 The certificate of the architect, or engineer, or acceptance by him of work done, is binding upon the owner, and in the absence of fraud or evident mistake, the owner is concluded thereby as to all questions which such certificate purports to pass upon, if the party giving the certificate was made by the terms of the contract the proper person to pass upon such question.20 Conversely if a certificate of failure of performance is to be given by the architect to enable the owner to terminate the contract and to complete the work himself, the omission to give such certificate prevents the owner from acting under such clause of the contract,21 and his subsequent certificate of the cost of such completion is not conclusive and is not even admissible as evidence.22 By specific provision, however, the certificate of an engineer may be conclusive upon the contractor but not upon the public officers with whom the contract is made or their successors.23 The contract may provide that the architect shall determine the meaning thereof.24 Under such a clause his decision that a stipulation for damages for each day's delay is a covenant for liquidated damages and not for a penalty is conclusive.25 It has been held that if the certificate does not specifically make the certificate of the architect a condition precedent to any recovery, but merely provides that payment shall be made upon such certificate, a contractor who has fully performed may recover on the common counts without producing such certificate or accounting for its absence.26

3 Meyers v. Construction Co., 20 Or. 603; 27 Pac. 584; Fulton v. Peters, 137 Pa. St. 613; 20 Atl. 936.

4 Seim v. Krause, 13 S. D. 530; 83 N. W. 583; East Tennessee, etc., Ry. v. Mfg. Co., 95 Tenn. 538; 32 S. W. 635.

5 Ashland, etc., Co. v. Shores, 105 Wis. 122; 81 N. W. 136.

6 Gowen v. Pierson, 166 Pa. St. 258; 31 Atl. 83.

7 Covington v. Limerick (Ky.), 40 S. W. 254.

8 Bullock v. Lumber Co. (Cal.), 31 Pac. 367; Nadeau v. Pingree, 92

Me. 196; 42 Atl. 353; Boyle v. Musser-Sauntry, etc., Co., 77 Minn. 206: 79 N. W. 659.

9 Fontano v. Robbins, 18 App. D, C. 402.

1 The Queen v. Cimon, 23 Can. S. C. 62; Newman v. United States, 81 Fed. 122; Elliott v. Ry., 74 Fed. 707; 21 C. C A. 3; Mundy v. Ry., 67 Fed. 633; Pauly, etc., Mfg. Co. v. Hemphill County. 62 Fed. 698; 10 C. C. A. 595; Lewis v. Ry., 49 Fed. 708; Summers y. Ry., 49 Fed. 714; Fitzgerald v. Walker. 55 Ark. 148; 17 S. W. 702; Jones & Hotchkiss Co. v. Davenport, 74 Conn. 418; 50

Atl. 1028; Chapman v. Ry., 114 Mo. 542; 21 S. W. 858; Brady v. New York, 112 N. Y. 480; 2 L. R. A. 751; 20 N. E. 390; Gonder v. Ry., 171 Pa. St. 492; 33 Atl. 61; McAlpine v. Academy, 101 Wis. 468; 78 N. W. 173.

2 Mundy v. Ry., 67 Fed. 633; Lewis v. Ry., 49 Fed. 708; Summers v. Ry., 49 Fed. 714; Barlow v. United States, 35 Ct. CI. 514; modified and affirmed, 184 U. S. 123; Ross v. McArthur, 85 la. 203; 52 N. W. 125.

3 Mitchell v. Dougherty, 86 Fed. 859; Kelly v. Muskegon, 110 Mich. 529; 68 N. W. 282; Anderson v. Imhoff, 34 Neb. 335; 51 N. W. 854.

4 Contra, if the contract is for conclusive determination. Fulton County v. Gibson, 158 Ind. 471; 63 N. E. 982; or is for arbitration in advance upon the question whether the agreement has been violated. Jones v. Brown, 171 Mass. 318; 50 N. E. 648.

5 Eckersley v. Harbor Board (1894), 2 Q. B. 667; Ives v. Wil-lans (1894), 2 Ch. 478; Ogden v. United States, 60 Fed. 725.

6 Williams v. Ry., 112 Mo. 463; 34 Am. St. Rep. 403; 20 S. W. 631.

7 Chicago Athletic Association v. Mfg. Co., 77 111. App. 204.

8 Hot Springs, etc., Ry. Co. v. Maher, 48 Ark. 522; 3 S. W. 639; Stose v. Heissler, 120 111. 433; 60 Am. Rep. 563; 11 N. E. 161; Barney v. Giles, 120 111. 154; 11 N. E. 206; Coey v. Lehman, 79 111. 173; Packard v. Van Schoick, 58 111. 79; Gillis v. Cobe, 177 Mass. 584; 59 N. E. 455; Hanley v. Walker, 79 Mich. 607; 8 L. R. A. 207; 45 N. W. 57; McGlauftin v. Wormser, 28 Mont. 177; 72 Pac. 428; Kirtland v. Moore, 40 N. J. Eq. 106; 2 Atl. 269; Wangler v. Swift, 90 N. Y. 38; Smith v. Briggs, 3 Denio (N. Y.) 73; Smith v. Brady, 17 N. Y. 173; 72 Am. Dec. 442; Ashley v. Hena-han, 56 O. S. 559; 47 N. E. 573; O'.Reilly v. Kernes, 52 Pa. St. 214; Boettler v. Tendick, 73 Tex. 488; 5 L. R. A. 270; 11 S. W. 497: Scott v. Construction Co. (Tex. Civ. App.), 55 S. W. 37; McConnell v. Hewes, 50 W. Va. 33; 40 S. E. 436; Coorsen v. Ziehl. 103 Wis. 381; 79 N. W. 562; John Pritzlaff Hardware Co. v. Berghoefer, 103 Wis. 359;79 N. W. 564; Burnham v. Milwaukee, 100 Wis. 55; 75 N. W. 1014; Forster Lumber Co. v. Atkinson, 94

Wis. 578; 69 N. W. 347; Wendt v. Vogel, 87 Wis. 462; 58 N. W. 764.

9 Winters v. Ramsey, 4 Ida. 303; 39 Pac. 193.

10 Jones v. Marlborough, 70 Conn. 583; 40 Atl. 460.

11 United States v. Robeson, 9 Pet. (U. S.) 319.

12 North American Ry. Construction Co. v. Surveying Co., 116 Fed. 169; Guthat v. Gow, 95 Mich. 527; 55 N. W. 442.

13 Bowe v. United States, 42 Fed. 761; Thompson v. Bradbury, 5 Ida. 760; 51 Pac. 758; Brownell Improvement Co. v. Critchfield, 197 111. 61; 64 N. E. 332; In re Freel, 148

N. Y. 165; 42 N. E. 586; Craig v. Geddis, 4 Wash. 390; 30 Pac. 396.

14 Brownell Improvement Co. v. Critchfield, 197 111. 61; 64 X. E. 332.

15 Gulf, etc., Ry. v. Ricker (Tex.). 17 S. W. 382.

16 Murray v. Regina, 26 Can. S. C. 203.

17 Chicago, etc., Ry. v. Price, 138 U. S. 185.

18 United States v. Barlow, 184 U. S. 123; modifying, 35 Ct. CI. 514.

19 Arnold v. Bournique. 144 111. 132; 36 Am. St. Rep. 419; 20 L. R. A. 493; 33 N. E. 530.

20 Sheffield, etc., Ry. v. Gordon, 151 U. S. 285; Martinsburg, etc., Ry. v. March, 114 U. S. 549; Tally v. Parsons, 131 Cal. 516; 63 Pac. 833; O'Keefe v. Church, 59 Conn. 551; 22 Atl. 325; McGuire v. Rapid City, 6 Dak. 346; 5 L. R. A. 752; 43 N. W. 346; Wilcox v. Stephenson, 30 Fla. 377; 11 So. 659; International Cement Co. v. Blifeld, 173 111. 179; 50 N. E. 716; Korf v. Lull, 70 111. 420; s. c, 84 111. 225; Schuler v. Eckert, 90 Mich. 165; 51 X. W. 198; Standard Stamping Co. v. Hemminghaus, 157 Mo. 23; 57 S. W. 746; Nofsinger v. Ring, 71 Mo. 149; 36 Am. Rep. 456; Sisters of Charity v. Smith (X. J. Eq.), 46 Atl. 598; Bowman v. Stewart, 165 Pa. St. 394; 30 Atl. 988; Kennedy v. Poor, 151 Pa. St. 472; 25 Atl. 119; Boettler v. Tendick, 73 Tex. 488; 5 L. R. A. 270; 11 S. W. 497; Hughes v. Bravinder, 9 Wash. 595;

38 Pac. 209. "It is difficult to see what effect should be given the acceptance of work by the superintendent, if not to foreclose the parties from thereafter claiming that the contract had not been performed according to its terms." Sheffield, etc., Co. v. Gordon, 151 U. S. 285, 292.

21 Champlain Construction Co. v. O'Brien, 104 Fed. 930; O'Keefe v. Church. 59 Conn. 551; 22 Atl. 325; International Cement Co. v. Blifeld, 173 111. 179; 50 N. E. 716; Charlton v. Scoville, 144 N. Y. 691; 39 N. E. 394.

22 Charlton v. Scoville, 144 N. Y.. 691; 39 X. E. 394.

23 O'Brien v. New York. 139 N. Y. 543; 35 X. E. 323.

24 Hennessy v. Metzger, 152 111. 505; 43 Am. St. Rep. 267; 38 N. E. 1058.