This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
An architect or engineer cannot delegate his authority to decide questions of fact,1 unless the parties to the building contract acquiesce in the selection of the person whom he designates.2 The determination of an architect or engineer agreed upon by the parties to the contract, is not binding upon third persons who have contracts with either the owner or contractor,3 unless the contract with such third person makes performance of his contract subject to the approval of such engineer.4 The certificate given by the architect is not a performance of a condition precedent, unless it shows on its face his determination in the contractor's favor of all the facts made by the contract conditions precedent, and the enforcement of liability by the contractor.5 Thus a certificate that a certain amount of railroad track is "laid, that trains have been run over the same, and that it is in a suitable condition for traffic," does not entitle the contractor to payment where he was to be paid when such amount of track was " fully completed and equipped " in " suitable condition for running trains thereon," and providing that the certificate of the engineer should be conclusive.6 On the other hand, a finding by the architect,that a certain amount should be retained until it is determined whose fault it is that certain work has not been done, is not conclusive that it was the fault of the contractor, and does not therefore prevent him from recovering such amount if he can show that the fault was not his.7 Under a provision in a contract for payment when the building is " completed and accepted by the architect," a written certificate of his approval, though valuable, is not indispensable.8 On the other hand, if a written certificate is provided for by the contract, the oral approval of the architect is insufficient if the owner has not waived the production of the written certificate.9 A mistake made by the engineer in issuing installment certificates, may be corrected by him at the final estimate.10 If the architect or engineer designated in the contract as the person to determine questions of performance, is subsequently discharged by his employer, he has no longer power to decide such questions,11 aud the contractor is not obliged to obtain his certificate,12 but he may obtain a certificate from the architect actually in charge of the work.13 If, by the terms of the contract, questions of performance are to be decided by the owner and the architect, a decision of such question by the architect alone is not binding upon the owner.14
25 Hennessy v. Metzger, 152 111. 505; 43 Am. St. Rep. 267; 38 N. E. 1058.
26 Davis v. Badders, 95 Ala. 348; 10 So. 422; Gillis v. Cobe, 177 Mass. 584; 59 N. E. 455.
1 Spencer v. Silk Co., 112 Fed. 638.
2 Haskin-Wood Vulcanizing Co. v.
Ship-Building Co., 94 Va. 439; 26 S. E. 878.
3 Barclay v. Deckerhoof, 171 Pa. St. 378; 33 Atl. 71.
4 Jones v. Bisley, 91 Tex. 1; 32 S. W. 1027.
5 Mockler v. St. Vincent's Institution, 87 Mo. App. 473.
6 Kansas City, etc., Ry. v. Perk