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.
Nebraska. Howard County v. Pesha, - Neb. -, 172 N. W. 55.
Pennsylvania. Pittsburgh Terra-Cot-ta Co. v. Sharp, 190 Pa. St. 256, At Atl. 685; Thaler v. Wilhelm Greisser Construction Co., 229 Pa. St. 512, 33 L. R. A. (N.S.) 345, 79 Atl. 147.
Virginia. Richmond College v. Scott-Nuckols Co., - Va. -, 98 S. E. 1.
Washington. Dyer v. Kittitas County, 25 Wash. 80, 64 Pac. 1009; Windham v. Independent Telephone Co., 36 Wash. 166, 76 Pac. 936.
Wisconsin. Bently v. Davidson, 74 Wis. 420. 43 N. W. 139; Keachie v. Starkweather Drainage District, 168 Wis. 298, 170 N. W. 236.
If the architect withholds the certificate unreasonably, recovery can be had without it.15 If the engineer or architect is in fact satisfied with the work of the contractor, and if the certificate is refused in order to compel the contractor to reconstruct work which was injured by others without his fault, the contractor may recover without such certificate.16 Such conduct amounts either to fraud or to evident mistake.17
9 Coplew v. Durand, 153 Cal. 278, 16 L. R. A. (N.S.) 791, 95 Pac. 38; Rich-mond College v. Scott-Nuckols Co., -Va. -, 98 S. E. 1.
10 Howard County v. Pesha, - Neb. -, 172 N. W. 55.
11 United States. Crane Elevator Co. v. Clark, 80 Fed. 705.
Illinois. McDonald v. Patterson, 186 Ill. 381, 37 N. E. 1027.
Indiana. Bird v. St. John's Episcopal Church, 154 Ind. 138, 56 N. E. 129.
Pennsylvania. Coon v. Citizens' Water Co., 152 Pa. St. 644, 25 Atl. 505; Pittsburgh Terra-Cotta Co. v. Sharp, 190 Pa. St. 256, 42 Atl. 685.
Washington. Dyer v. Kittitas County, 25 Wash. 80, 64 Pac. 1009.
Wisconsin. Bentley v. Davidson, 74 Wis. 420, 43 N. W. 139.
13 See ch. LXXX.
14 Mahoney v. Church, 47 La. Ann. 1064. 17 So. 484.
15 California. Coplew v. Durand, 153 Cal. 278, 16 L. R. A. (N.S.) 791, 95 Pac. 38.
Indiana. Bird v. Church, 154 Ind. 138, 56 X. E. .129.
Kansas. Edwards v. Hartshorn, 72 Kan. 19, 1 L. R. A. (N.S.) 1050, 82 Pac 520.
Pennsylvania. Coon v. Water Co., 152 Pa, St. 644, 25 Atl. 505.
Wisconsin. Keachie v. Starkweather Drainage District, 166 Wis. 298, 170 N. W. 236.
The architect must act upon his own judgment in order to make his refusal to issue a certificate conclusive upon the contractor.18 Thus if he acts solely upon the statements of his subordinates,19 or delegates to another the power to decide questions of performance,20 or states objections made by his employer without exercising his own judgment as to the correctness of the objections made,21 or withholds the certificate solely on the order of the owner,22 he has not exercised his own judgment as required by the contract, and his refusal to issue a certificate is not conclusive. If the engineer refuses to grant a certificate because of his want of information upon the subject, the contractor may recover without such certificate.23 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 delay unreasonable, relies entirely upon what the other architect tells him.24 If the architect or engineer employs an assistant who is evidently biased and prejudiced against the contractor to make the measurements, estimates and classifications required by the contract, the contractor may recover in the absence of such certificate upon showing that he has performed the contract.25
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.26 If the architect or engineer has announced his determination in advance, and if it is evident that he has made up his mind without waiting for objections on the part of the contractor as provided for by the contract, such conduct on the part of the architect or engineer makes it unnecessary for the contractor to present written objections within a specified time as required by the contract.27
16 Coplew v. Durand, 153 Cal. 278, 16 L. R. A. (N.S.) 791, 95 Pac. 38.
"Crane Elevator Co. v. Clark, 80 Fed. 705.
18 So must a scaler selected by both parties. Bresnahan v. Ross, 103 Mich. 483, 61 N. W. 793.
19 Van Hook v. Burns, 10 Wash. 22, 38 Pac. 763.
20 Monahan v. Fitzgerald, 164 Ill 525, 45 N. E. 1013.
21 Crane Elevator Co. v. Clark, 80 Fed. 705.
22 Foster v. McKeown, 192 Ill. 339, 61 N. E. 514; Marsch v. Southern New England R. Corp., 230 Mass. 483, 120 N. E. 120.
23 Shippey v. United States, 49 Ct Cl. 151.
24 Benson v. Miller. 56 Minn. 410, 57 N. W. 943.
25 Nelson Bennett Co. v. Twin Falls Land & Water Co., 14 Ida, 5, 93 Pac 789.
The act of the owner, whereby he prevents the contractor from completing his contract,28 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,29 or the wrongful refusal of the architect who is to issue such certificate to make an examination of the premises,30 or the wrongful refusal of an arbitrator to act,31 are acts which excuse compliance with such conditions precedent.
The property owner who, by the terms of the contract, is concluded by the certificate of the architect or engineer, may, conversely, attack the action of the architect or engineer on the ground of fraud or bad faith.32 If, by the terms of the contract, notice of a defect was to be given by the engineer of the public corporation as a condition precedent to the right of action of the corporation to recover on the contract, the public corporation may show as an excuse for failure to give such notice that the contractor had bribed the engineer from giving it.33
Whether the architect has acted in good faith or not is a question of fact, to be determined by the tribunal trying the fact.34 Good faith and honest dealing on the part of the architect or engineer will be presumed, and the party who attacks his conduct in giving or refusing a certificate has the burden of showing bad faith, unreasonable conduct, and the like.35 The fact that the contractor has complied with the demands made by the architect or engineer when the certificate is first asked for and refused, is not conclusive as a matter of law that the architect or engineer is acting in bad faith,36 since other defects which were not apparent at the time of the first investigation may have been discovered subsequently.37
26 Gilmore v. Courtney, 168 Ill. 432, 41 N. E. 1023.
27 Lantry Contracting Co. v. Atchison, Topeka & Santa Fe Ry., 102 Kan. 799, 172 Pac. 527. (In this case the engineer had prepared estimates in the alternative-one to be furnished if the contractor intended to sue the property owner, and the other to be furnished in case the contractor agreed not to sue the property owner.)
28 St. Louis, etc., Ry. v. Kerr, 153 Ill. 182, 38 X. E. 638; Justice V. Elwert, 28 Or. 460, 43 Pac. 649.
29 New York, etc., Co. v. Andrews, 173 N. Y. 25, 65 N. E. 776.
30 McDonald v. Patterson, 180 Ill. 381, 57 N. E. 1027; Moran v. Schmitt, 109 Mich. 282, 67 N. W. 323.
31 Potter v. Holmes, 72 Minn. 153, 76 N. W. 591.
32 Hutchinson v. Kansas Bitulithic Co., 239 Fed. 059, 152 C. C. A. 493.
33 Hutchinson v. Kansas Bitulithic Co., 239 Fed. 659.
34 Carlile v. Corrigan, 83 Ark. 136, 103 S. W. 620; Schneider v. Ann Arbor, 195 Mich. 599, 102 N. W. 110; Fay