the contract may have set as the forfeiture; and it is next to impossible for the architect to fix this damage, even if he is entitled by his position to do so. The consequence is that if he gives his certificate without taking such deductions into consideration, he incurs the enmity of the owner, who finds it more difficult to make terms with the contractor, after the latter has been fortified with the architect's certificate; and if he makes his deductions on these accounts too large, he gives the builder a just right to complain, and perhaps finds that the validity of the entire certificate has been destroyed. Some of the griefs which arise from the failure of the builder to follow the exact proportions of the drawings are even more difficult to adjust. The rule is that the owner, in such cases, is entitled, if he does not choose to insist on having the error corrected, to deduct from the contract price the difference between the market value of the house as it actually is, and that which it would have had if it had been carried out in strict accordance with the drawings. There is some doubt whether the architect is the proper person to make this estimate, and it has been held in one case that a real-estate agent should be the one to make the valuation; but the architect is, apparently, bound to call the attention of the owner to the fact that such defects exist, for which a deduction may lawfully be made. Hence the final certificate is, to some extent, provisional, and the architect should be careful to reserve in it the rights which the owner, under the contract, may insist upon if he chooses. Where a contract partly executed is abandoned by agreement of the parties, or by the fault of one of them, or where such alterations and changes have been made as to obscure totally the original agreement, it sometimes happens that the contract is treated by a court as no longer existing, and the builder is held to be entitled to recover quantum meruit for his work and materials; that is, what they can be proved to have been really worth, without regard to the contract price Yeats vs. Ballantine, 56 Mo. 530. Hanley vs. 79 Mich. 607. McMahon vs. N. Y. & E. R.R., 20 N. Y. 463. Korf vs. Lull, 70 I11. 420. Clark vs. 70 III. 128. Vermont St. Church vs. 104 Ill. 207. Haden vs. Coleman, 73 N. Y. 567. Waiver of Certificate. Blethen rs. Bannister vs. 35 Wis. 316. for them. In such a case, it becomes important to know whether it is still necessary to produce the architect's certificate, in order to recover payment on the new basis. The law appears to be that it is not necessary, in such cases, to produce the certificate; but it has been held, even in a suit on quantum meruit, where the architect had pointed out certain defects, and the builder claimed to have remedied them, that he must show the architect's certificate to the effect that they had been satisfactorily corrected. Where certificates are to be based on measurements, as is frequently the case with interim certificates, the contractor, if he wishes, is entitled to be notified, and to be present when the measurements are made; and, in general, anything like an appearance of disingenuousness or partiality should be avoided. In cases where either the owner or contractor has some fancied grievance against the other, it is particularly necessary to preserve an attitude of judicial fairness; and it has been held that, "Where the architect knows that there is a mis"understanding between the parties, it would be well for him "to give notice of the time and place where he will render a "decision." Like all the other conditions of a contract, the one requiring the production of the architect's certificate as a condition precedent to receiving payment, may be waived by the party for whose benefit the provision is particularly intended; and the waiver may be express, by agreement between the parties; or implied from certain acts or conduct on the part of the one entitled to make the waiver. As it is often very much for the interest of the builders to be able to dispense with the architect's approval of their work, waiver of it on the part of the owner is very frequently claimed, and sometimes sustained. It has been held, for example, where a building had been completed and occupied, apparently without objection from the architect, although he had not given his certificate, that the occupation of the building was evidence that the owners were satisfied of the completion of the contract, without the evidence of the certificate, and that payment was due; and in a New York case, even where the architect had refused to give a final certificate, by the direction, as he said, of the owner, the fact that the owner had moved into his house, and had given other reasons for believing that he considered the contract as completed, was held to constitute a waiver of the condition requiring the architect's certificate, so that the builder was entitled to recover payment without it. It would be, however, quite incorrect to suppose that mere occupancy of a building constituted a waiver of any of the requirements of an ordinary contract. Many examples will be given hereafter to show that this is not the case; and the implied waiver of the certificate in Smith vs. Alker depended upon circumstances additional to simple occupancy. Where certificates for payments on account are to be given, as well as the final certificate, it has been decided that if interim certificates in a form not strictly according to the contract have been accepted without question, and payments inade on them, a final certificate in a similar form is valid; but where the interim certificates have not been given at all, but payments have been made without them, it has been held that this did not waive the necessity for procuring the final certificate, or set aside one which had been procured, but which was not in accordance with the contractor's wishes. Smith vs. Alker, 102 N. Y. 87. Mere Occupancy not Waiver. Bloodgood vs. 5 Del. Ch. 270. Barton vs. Hermann, 11 Abb. Pr. N. S. 378. Relation Between Owner and Builder Fixed by the Contract. Written, Oral and Implied Contracts. THE CHAPTER XV. THE CONTRACT. HE relation between the builder and the owner is formed exclusively by the contract. This alone defines what the builder is to do for his employer, and how much, and in what manner, and at what time, he shall be paid for doing it. A contract may be a very informal affair, and may even be implied from certain actions of one party or the other; but, without a contract of some kind, neither party is obliged to do anything for the other. Contracts, in general, are of three sorts, written, oral, or parol, as they are sometimes called, and implied. In the first sort, each party signs a writing, containing what both agree to do; in the second sort, the parties verbally agree what one shall do, and the other pay for the service; and in the third sort, one party asks the other to do something, or, after the thing has been done without his asking, accepts the benefit of it; and a promise to pay a reasonable price for what has been done is thereby implied. Practically, most contracts combine the features of at least two of the sorts. Few written contracts, and still fewer oral ones, are so full as to describe everything that each party is to do, and some of the provisions which the parties really intended have to be implied from various circumstances, such as local custom, previous transactions between the parties, legal maxims laid down for the purpose of meeting such cases, or many other things. Of the three sorts, the written contract is commonly supposed to be the most binding. In reality, it is no more binding than any of the others, but, as there can be no dispute about terms laid down in black and white, and signed by both parties, while two persons will rarely agree as to what was said in making an oral contract, it is usually the most easily enforced. Moreover, as there is a certain solemnity attached to the signing and delivery of a written contract, it is always presumed in law that the written document is the final quintessence and conclusion of all the oral negotiations which have preceded it, and expresses the matured agreement and understanding between the parties. For this reason, as has been before mentioned, (Page 10), testimony as to oral conversations and agreements, which contradict a subsequent written contract, or even a very informal written memorandum of a contract, is generally excluded by courts. Innumerable examples to illustrate this point can be found in the law reports, as nothing is more common than for people, when brought to account for not fulfilling their agreements, to endeavor, unsuccessfully, to introduce evidence to show that they did not really mean what they signed their names to, but something else. The contract between the builder and the owner may be, in some cases, a contract for employment simply, in which the mechanic works by the day or hour, and the owner either agrees to pay him certain wages, or promises, by implication, to pay him a reasonable compensation; or the agreement may be for the builder to furnish materials as they are wanted, and engage men, who work by the day at whatever the owner may wish them to do, and are paid for their time by the owner, although usually indirectly through the builder, who charges a profit on the wages actually paid, to compensate him for his trouble in hiring and supervising the men. A contract of this kind differs materially, in the method of enforcement, and the responsibility which it imposes on the parties, from one in which the builder agrees to do a certain work for a fixed sum; but details on this point will be given later. It was said above that if a person does a service for another, Written Contracts. Contracts for Employment. |