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 fact that the engineer selected by the parties is in the employment of one of the parties to the contract, and is therefore possibly biased in his judgment,1 or that he is a stockholder,2 or a former member of a board of directors,3 of the adversary party to the contract, does not make such provision unenforceable. The fact that the engineer, architect, and the like, is an employe of one of the parties, makes it necessary that he should exercise the utmost diligence and good faith in determining the questions which are submitted to him for determination.4
Since the power to determine questions between the adversary parties to a contract is personal,5 an architect or engineer can not delegate his authority to decide questions of fact 6 unless the parties to the building contract acquiesce in the selection of the person whom he designates,7 although he may base his findings on the report of his assistants.8 If one of the parties to the contract,9 such as the property owner,10 acquiesces in inspection by an employe of the engineers whose determination is to be final in accordance with the terms of the contract, such acquiescence waives the right of such party to demand a personal inspection by such engineers.
If the contract, either by express terms or by fair implication, shows that the engineer is not to make personal inspection of all the work, he may act through his agents or employes and may issue certificates based on their report.11
Marsch v. Southern New England R. Corp., 230 Mass. 483, 120 N. E. 120; Rosenberg v. Turner, - Va. -, 98 S. E. 763; Keachie v. Starkweather Drainage District, 168 Wis. 298, 178 X. W. 236.
1 Eckersley v. Harbor Board , 2 Q. B. 667; Ives v. Willams , 2 Ch. 478; Shriner v. Craft, 166 Ala. 146, 28 L. R. A. (N.S.) 450, 51 So. 884; Ogden v. United States, 60 Fed. 725; Edwards v. Hartshorn, 72 Kan. 10, 1 L. R. A. (X.S.) 1050, 82 Pac. 520; Marsch v. Southern New England R. Corp., 230 Mass. 483. 120 N. E. 120.
2 Williams v. Ry., 112 Mo. 463, 34 Am. St. Rep. 403, 20 S. W. 631.
3 Chicago Athletic Association v. Mfg. Co., 77 Ill. App.
4 Edwards v Hartshorn, 72 Kan. 19, 1 L. R. A. (X.S.) 1030, 82 Pac. 520.
5 See Sec. 2250 et seq.
6 Spencer v. Silk Co., 112 Fed. 638.
7 Seretto v. Rockland, S. T. & O. H. Ry., 101 Me. 140, 63 Atl. 651; Haskin-Wood Vulcanizing Co. v. Ship-Building Co.. 04 Va. 430, 26 S. E. 878.
8 Richmond College v. Scott-Nuckols Co., - Va.- , 98 S. E. 1.
9 Richmond College v. Scott-Nuckols Co., - Va. -, 98 S. E. 1.
10 Richmond College v. Scott-Nuckols Co., - Va. -, 98 S. E. 1.
11 Richmond College v. Scott-Nuckols Co., - Va, -, 98 S. E. 1.
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,12 and the contractor is not obliged to obtain his certificate,13 but he may recover without a certificate,14 or he may obtain a certificate from the architect actually in charge of the work.15 If the engineer, whose certificate and final estimate should be a condition precedent to the right of the contractor to recover full compensation, does not delay unreasonably, the contractor has no power to employ another engineer to make such final estimate without the consent of the property owner;16 and accordingly he can not bring an action against the property owner based upon such estimate.17 After the architect or engineer has rendered a decision and communicated it, his employer can not revoke his authority so as to render such decision inoperative.11
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.19