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.
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.1 Thus the architect's decision that certain paving was not constructed in accordance with the contract,2 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 can not reconsider such question and give a certificate to the contrary effect;3 nor can his successor,4 nor another engineer in the owner's employ.5 An engineer can not, by approving stone to be quarried from a specified quarry, preclude his successor from rejecting the stone actually offered under such contract.6 After the certificate has once been delivered to take effect, the subsequent fate of the instrument is immaterial. Hence, if the contractor redelivered the certificate to the architect, such certificate is still binding upon the owner.7
12 Wallis Iron Works v. Park Association, 55 N. J. L. 132, 39 Am. St. Rep. 626, 19 L. R. A. 456, 26 Atl. 140.
13 Fitts v. Reinhart, 102 Ia. 311, 71 N. W. 227; Halsey v. Waukesha Springs Sanitarium, 125 Wis. 311, 110 Am. St. Rep. 838, 104 N. W. 94.
14 Halsey v. Waukesha Springs Sanitarium, 125 Wis. 311, 110 Am. St. Rep. 838, 104 N. W. 94.
15 Griffith v. Happersberger, 86 Cal. 605, 614, 26 Pac. 137, 487.
16 Johnson v. Bunn, 108 Va. 490, 62 8. E. 341.
17 Johnson v. Bunn, 108 Va. 400, 62 S. E. 341.
18 Norcross v. Wyman, 187 Mass. 25, 72 N. E. 347.
19 Welch v. Woodworking Co., 61 N.
J. L. 57, 38 Atl. 824; Sicilian Asphalt Paving Co. v. Williamsport, 186 Pa. St. 256, 40 Atl. 471; Pormann v. Walsh, 97 Wis. 356, 65 Am. St. Rep. 125, 72 N. W. 881.
1 United States. Bowe v. United States, 42 Fed. 761.
Idaho. Thompson v. Bradbury, 5 Ida. 760, 51 Pac. 758; Nelson Bennett Co. v. Twin Falls Land & Water Co., 14 Ida. 5, 93 Pac. 789.
Illinois. Brownell Improvement Co. v. Critchfield, 107 Ill. 61, 64 N. E. 332.
New York. In re Freel, 148 N. Y. 165, 42 N. E. 586.
Washington. Craig v. Geddis, 4 Wash 390. 30 Pac. 306.
2 Brownell Improvement Co. v. Critchfield, 197 Ill. 61, 64 N. E. 332.
The certificate of the architect or engineer, or acceptance by him of work done, is usually made 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.8 The fact that the architect signed the contract as agent of the owner, does not prevent the operation of a provision which in effect makes the certificate of the architect binding on the owner,9 especially if the owner has approved such contract.10 A clause which makes the certificate of the engineer or architect binding upon the contractor, is construed as making it binding upon the owner.11 As far as this involves the effect of the architect's directions given to the contractor during the performance of the contract, it is undoubtedly correct, since, if such directions were not conclusive upon the owner, the contractor might comply with the directions of the architect literally, and he might then be unable to recover from the owner.12 However, a provision to the effect that buildings were to be constructed in accordance with plans and specifications, and to the satisfaction of a specified architect, to be testified by his certificate, has been held not to make such certificate conclusive upon the property owner.13 The certificate of the architect or engineer is accordingly admissible in evidence as tending to show performance.14
3 Gulf, etc., Ry. v. Ricker (Tex.), 17 S. W. 382. 4 Murray v Regina, 26 Can. S. C. 203.
5 Chicago, etc., Ry. v. Price, 138 U. S. 185, 34 L. ed. 917.
6 United States v. Barlow, 184 U. S. 123, 46 L. ed. 463 [modifying, 35 Ct. Cl. 514].
7 Arnold v. Bournique, 144 Ill. 132, 36 Am. St. Rep. 419, 20 L. R. A. 493, 33 N. E. 530.
8 United States. Martinsburg, etc., Ry. v. March, 114 U. S. 549, 29 L. ed. 235; Sheffield, etc., Ry. v. Gordon. 151 U. S. 285, 38 L. ed. 164; Chicago, Santa Fe & California Ry. Co. v. Price, 138 U. S. 185, 34 L. ed. 917.
Alabama. Shriner v. Craft, 166 Ala. 146, 28 L. R. A. (N.S.) 450, 51 So. 884.
Arkansas. Boston Store v. Schleu-ter, 88 Ark. 213, 114 S. W. 242.
California. Tally v. Parsons, 131 Cal. 516, 63 Pac. 833.
Connecticut. O'Keefe v. Church, 59 Conn. 551, 22 Atl 325.
Dakota. McGuire v. Rapid City, 6 Dak. 346, 5 L. R. A. 752, 43 N. W. 346.
Florida. Wilcox v. Stephenson, 30 Fla 377, 11 So 659.
Idaho. Kelson Bennett Co. v. Twin Falls Land & Water Co., 14 Ida. 5, 93 Pac. 789.
Illinois. Korf v. Lull, 70 Ill. 420 [s. c., 84 Ill. 225]; International Cement Co. v. Blifeld, 173 Ill. 179, 50 N. E. 716.
Massachusetts. Norcross v. Wyman, 187 Mass. 25, 72 N. E. 347.
Michigan. Schulcr v. Eckert, 90 Mich. 165, 51 N. W. 198; Young v. Stein, 152 Mich. 310, 125 Am. St. Rep. 412, 17 L. R. A. (N.S ) 231, 116 N. W. 195.
Minnesota. Robertson v. Grand Rapids, 96 Minn. 69, 104 N. W. 715.
Missouri. Nofsinger v. Ring, 71 Ma 14ft, 36 Am. Rep. 456; Standard Stamping Co. v. Hemminghaus, 157 Mo. 23, 57 S. W. 746.
Nebraska. Katz - Craig Contracting Co. v. Cozad, 101 Neb. 189, 162 N. W. 490; Howard County v. Pesha, - Neb. -, 172 N. W. 55.
New Jersey. Sisters of Charity v. Smith (N. J. Eq), 46 Atl. 598.
Pennsylvania. Kennedy v. Poor, 151 Pa. St. 472, 25 Atl. 119; Bowman v. Stewart, 165 Pa. St. 394, 30 Atl. 988.
Texas. Boettler v. Tendick, 73 Tex. 488, 5 L. R. A. 270, 11 S. W. 497.
Washington. 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, 38 L. ed. 164.
9 Young v. Stein, 152 Mich. 310, 125 Am. St. Rep. 412, 17 L. R. A. (N.S.) 231, 116 N. W. 195.
10Young v. Stein, 152 Mich. 310, 125 Am. St. Rep. 412, 17 L. R. A. (N.S.) 231, 116 N. W. 195.
11 Boston Store v. Schleuter, 88 Ark. 213, 114 S. W. 242; Andrew Lohr Bottling Co. v. Ferguson, 223 Ill. 88, 114 Am. St. Rep. 305, 70 X. E. 35; Young v. Stein, 152 Mich. 310, 125 Am. St. Rep. 412, 17 L. R. A. (N.S.) 231, 116 N. W. 195.
12 Young v. Stein, 152 Mich. 310, 125 Am. St. Rep. 412, 17 L. R. A. (N.S.) 231, 116 N. W. 195.
13 Mercantile Trust Co. v. Hensey, 205 U. S. 298, 51 L. ed. 811.
"We do not think this certificate was conclusive, and it did not, therefore, bar the maintenance of this action. The language of the contract, upon which the claim is based, is set out in the foregoing statement, and while it provides that the work shall be completed agreeably to the drawings and specifications made by M. D. Hensey, architect, in a good, workmanlike and substantial manner, to the satisfaction and under the direction of Bates Warren, or the architect placed in charge by him, to be testified by writing or certificate under the hand of Bates Warren, or the architect placed in charge by him, it omits any provision that the certificate shall be final and conclusive between the parties. In other words, the contract provides that before the builder can claim payment at all he must obtain the certificate of the architect; but after such certificate has been given, there is no provision which bars the plaintiff from showing a violation of the contract in material parts, by which he has sustained damage. A contract which provides for the work on a building to be performed the compensation made to the contractor for supervising the performance of the work after the default of the subcontractor.21 If the contract between the principal contractor and the property owner provides that all disputes shall be settled by the engineer, such provision does not give to the engineer power to pass on the validity of a contract between the principal contractor and a subcontractor.22
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,15 and his subsequent certificate of the cost of such completion is not conclusive and is not even admissible as evidence.16
By specific provision, however, the certificate of an engineer may be conclusive upon the contractor, but not upon the adversary party.17
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,18 unless the contract with such third person makes performance of his contract subject to the approval of such engineer.19 A subcontractor whose contract does not contain a provision making the decision of the engineer or architect of the property owner conclusive, is not bound by a certificate of such engineer given to the principal contractor and fixing the amount which the principal contractor lost by reason of the subcontractor's failure to perform in time.20 If the contract between the principal contractor and the subcontractor gives power to the architect to fix the amount of damages due to the failure of the subcontractor to perform, the architect may include in the best manner and the materials of the best quality, subject to the acceptance or rejection of an architect, all to be done in strict accordance with the plans and specifications, does not make the acceptance by the architect final and conclusive, and will not bind the owner or relieve the contractor from the agreement to perform according to plans and specifications. Glacius v. Black, 50 N. Y. 145; Fontano v. Rob-bins, 22 App. D. C. 253." Mercantile Trust Co. v. Hensey, 205 U. S. 298, 51 L. ed. 811.
14 O'Loughlin v. Poli, 82 Conn. 427, 74 Atl. 763; McMilleen v. School District, - Mich. -, 167 N. W. 48.
15 Champlain Construction Co. v. O'Brien, 104 Fed. 030; O'Keefe v. Church, 59 Conn. 531, 22 Atl. 325; International Cement Co. v. Blifeld, 173 Ill. 179, 50 X. E. 716; Charlton v. Sco-ville, 144 X. Y. 691, 39 X. E. 304.
16 Charlton v. Scoville, 144 N. Y. 691, 39 N. E. 304.
17 O'Brien v. New York, 139 N. Y. 543, 35 X. E. 323.
18 Wallace v. Oregon Engineering & Construction Co., 90 Or. 31, 174 Pac. 156; Barclay v. Deckerhoof, 171 Pa. St. 378, 33 Atl. 71; Modern Steel Structural Co. v. English Const. Co., 129 Wis. 31, 108 X. W. 70.
19 White v. Abbott, 188 Mass. 99, 74 N. E. 305; Jones v. Risley, 91 Tex. 1, 32 S. W. 1027.
20 Modern Steel Structural Co. v. English Const. Co., 129 Wis. 31, 108 N. W. 70.