Sec. 2654. Refusal Of Certificate For Substantial Performance, Short Of Exact Performance
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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.
Sec. 2654. Refusal Of Certificate For Substantial Performance, Short Of Exact Performance
In some jurisdictions it seems to be held that in case of substantial performance under a contract which provides for the certificate of the architect or engineer, the architect or engineer should issue a certificate of performance wherever the contract has been performed substantially, and that in such certificate deduction should be made for the necessary cost of completing the contract. Accordingly, the contractor is allowed to recover without the certificate of the architect or engineer in case such certificate is refused until the contract is performed literally or exactly.1 Under this theory, 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.2 In other jurisdictions, however, effect seems to be given to the provision which requires the certificate of an architect or engineer as a condition precedent to recovery. It is felt that the judgment of the architect or engineer is final if he is acting in good faith; 3 and accordingly the contractor can not recover, even in case of substantial performance,4 without showing that the refusal is fraudulent or unreasonable.5 In these jurisdictions it is held that it is not fraudulent or unreasonable for the architect or engineer to refuse his certificate until the contract has been performed literally.6
T. Moore, 261 Pa. St. 437, 104 Atl. 680; Long v. Pierce County, 22 Wash. 330, 61 Pac 142.
35 Bush v. Jones, 144 Fed. 942, 75 C. C A. 582, 6 L. R. A. (N.S.) 774; Schneider v. Ann Arbor, 196 Mich 599, 162 N. W. 110.
36 Hebert v. Dewey, 191 Mass. 403, 77 N. E. 822.
37 Hebert v. Dewey, 191 Mass. 403, 77 N. E. 822.
1 Bush v. Jones, 144 Fed. 942, 6 L. R. A. (N.S.) 774; Central Union
Stock Yards Co. v. Uvalde Asphalt Paving Co., 82 N. J. Eq. 246, 87 Atl. 235 (possibly a case of complete performance); Nolan v. Whitney, 88 N. Y. 648; Crouch v. Gutmann, 134 N. Y. 45, 30 Am. St. Rep. 608, 31 N. E. 271; Washington Bridge Co. v. Land and River Improvement Co., 12 Wash. 272, 40 Pac. 982.
2 Washington Bridge Co. v. Improvement Co., 12 Wash. 272, 40 Pac. 982.
3 Hebert v. Dewey, 191 Mass. 403, 77 N. E. 822.
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