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.
The contractor may, in some cases, excuse his failure to obtain the certificate of the architect. If he can show that the certificate was refused by the architect fraudulently, and in bad faith, he may recover without such certificate.1 If he can show that the certificate is withheld fraudulently it is not necessary to show that the owner was a party to the fraud.2 On the other hand, if the owner can show that the architect gave the certificate when it should not have been given, and that he acted fraudulently and in bad faith, he is not bound by the issuing of such certificate.3 If the contractor can show that the architect withheld his certificate arbitrarily, without in fact passing upon the question in dispute in a fair and honest manner, he may recover notwithstanding the absence of such certificate.4 Thus the architect cannot withhold the certificate because the sub-contractors and material men have not been paid where the chief contractor agrees that they may be paid out of the funds in the hands of the owner, which are ample for that purpose.5 If the architect withholds the certificate unreasonably, recovery can be had without it.6 So recovery can be had on a contract for constructing a bridge, which has cost more than six thousand dollars, which has been performed except certain work which would cost thirty dollars, and which, on account of climatic conditions it is impossible to perform until the next season.7 Such conduct amounts either to fraud or to evident mistake.8 The architect must act upon his own judgment in order to make his refusal to issue a certificate conclusive upon the contractor.9 Thus if he acts solely upon the statements of his subordinates,10 or delegates to another the power to decide questions of performance,11 or states objections made by his employer without exercising his own judgment as to the correctness of the objections made,12 or withholds the certificate solely on the order of the owner,13 he has not exercised his own judgment as required by the contract, and his refusal to issue a certificate is not conclusive. So if the contract contains a clause providing that if in the judgment of two designated architects, the contractor delays completion an unreasonable length of time, the owner may, on three days' notice, complete the contract, both architects designated must exercise independent judgment, and an order to stop work is invalid if one of the architects, in declaring; the delav unreason-able, relies entirely upon what the other architect tells him.14 The same principle applies where the scaler agreed upon by the parties to measure logs acts solely under the direction of an agent of the vendee.15 As long as the architect has not wrongfully refused to give a certificate of completion, the fact that the contractor fears such wrongful refusal, does not excuse him from omitting to apply for such certificate.16 The act of the owner, whereby he prevents the contractor from completing his contract,17 or makes it impossible for him to obtain the certificate, as where a contractor who puts in fire sprinklers is to get a certificate of approval from a board of fire underwriters and the board refuses such certificate for the sole reason that the water supply furnished by the owner was insufficient,18 or the wrongful refusal of the architect who is to issue such certificate to make an examination of the premises,19 or the wrongful refusal of an arbitrator to act,20 are acts which excuse compliance with such conditions precedent. Whether the architect has acted in good faith or not is a question of fact, to be determined by the tribunal trying the fact.21
1 Cannon v. Hunt, 113 Ga. 501; 38 S. E. 983.
2 Leverone v. Arancio, 179 Mass. 439; 61 N. E. 45; Mcintosh v. Hastings, 156 Mass. 344; 31 N. E. 288.
3 Jacob v. Weisser, 207 Pa. St. 484; 56 Atl. 1065.
1 Gubbins v. Lautensehlager, 74 Fed. 160.
2 Wilson v. Borden, 68 N. J. L. 627; 54 Atl. 815.
1 Marks v. Ry., 76 Fed. 941; 22 C. C. A. 630; Spaulding v. Navigation Co., 5 Ida. 528; 51 Pac. 408; Micbaelis v. Wolf, 136 111. 68; 26 N. E. 384; Illinois Central Ry. v. Manion, 113 Ky. 7; 67 S. W. 40; Williams v. Ry., 112 Mo. 463; 34 Am. St. Rep. 403; 20 S. W. 631;
Chism v. Schippen, 51 N. J. L. 1; 14 Am. St. .Rep. 668; 2 L. R. A. 544; 16 Atl. 316; Bradner v. Roff-sell, 57 N. J. L. 32; 29 Atl. 317; Smith v. Brady, 17 N. Y. 173; 72 Am. Dec. 442; Herrick v. Belknap, 27 Vt. 673.
2 Chism v. Schipper, 51 N. J. L. 1; 14 Am. St. Rep. 668; 2 L. R. A. 544; 16 Atl. 316.
3Glacius v. Black, 50 N. Y. 145;
10 Am. Rep. 449; Tetz v. Butter-field, 54 Wis. 242; 41 Am. Rep. 29;
11 N. W. 531.
4 Crane Elevator Co. v. Clark, 80 Fed. 705; McDonald v. Patterson, 186 111. 381; 57 N. E. 1027; Pittsburgh Terra-Cotta Co. v. Sharp, 190
Pa. St. 256; 42 Atl. 685; Dyer v. Kittitas County, 25 Wash. 80; 64 Pac. 1009; Bently v. Davidson. 74 Wis. 420; 43 N. W. 139.
5 Mahoney v. Church, 47 La. Ann. 1064; 17 So. 484.
6 Bird v. Church, 154 Ind. 138; 56 N. E. 129; Coon v. Water Co., 152 Pa. St. 644; 25 Atl. 505.
7 Washington Bridge Co. v. Improvement Co., 12 Wash. 272; 40 Pac. 982.
8 Crane Elevator Co. v. Clark. 80 Fed. 705.
9 So must a scaler selected by both parties. Bresnahan v. R«»ss, 103 Mich. 483; 61 N. W. 793.
10 Van Hook v. Burns, 10 Wash. 22; 38 Pac. 763.
11 Monahan v. Fitzgerald, 164 111. 525; 45 N. E. 1013.
12 Crane Elevator Co. v. Clark, 80 Fed. 705.
13 Foster v. McKeown, 192 111. 339; 61 N. E. 514.
14 Benson v. Miller, 56 Minn. 410; 57 N. W. 943.
15Magee v. Smith, 101 Wis. 511; 78 N. W. 167.
16 Gilmore v. Courtney, 158 111. 432; 41 N. E. 1023.
17 St. Louis, etc., Ry. v. Kerr, 153 111. 182; 38 N". E. 638; Justice v. Elwert, 28 Or. 460; 43 Pac. 649.
18 New York, etc., Co. v. Andrews, 173 N. Y. 25; 65 N. E. 776.
19 McDonald v. Patterson, 186 111. 381; 57 N. E. 1027; Moran v, Schmitt, 109 Mich. 282; 67 N. W. 323.