[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 367 A material question is, whether the certificate, given by the plaintiff upon receiving the last payment, precludes him from recovering the damages claimed in the complaint. It is quite clear that the certificate alone, regarded as a release or receipt, would not have that effect. It does not in terms release such damages, and the general words employed would, within established principles, be limited to the items specified. (1 Edw. Ch., 34; 1 Cow., 122, and cases there cited.) But the certificate, taken in connection with the contract, presents a different question. The contract provides that the last payment shall not be made until, among other things, a certificate made by the party of the second part has been filed, "that all claims and demands for extra work, or otherwise, under or in connection with this contract, have been presented to the parties of the first part, and the amount to be paid therefor agreed upon by and between them, or a majority of them, and the party of the second part, and that such payment is in full of every claim or demand in the premises, except the amount so agreed upon for extra work."
By this provision the parties evidently contemplated that all claims arising out of or in consequence of the contract should be presented and liquidated before the final payment was made. If the plaintiff had declined to give the certificate he could not have enforced the payment. By giving the certificate he induced the defendant to make the payment, and is, I think, precluded from afterward setting up other claims. Under the agreement the certificate amounts to a *Page 369 waiver of other demands. The language of the contract is broad and comprehensive, "that such payment is in full of every claim or demand whatever in the premises," whether for extra work, or otherwise. It must be borne in mind that this language was used in advance, and we must give it effect according to the intent of the parties, and it seems most rational to suppose that when the certificate was given, and the last payment made, together with the amount of other claims which had been liquidated, they designed that the transaction should be closed. Parties have a right to make contracts for themselves, and it is the duty of courts to enforce them as made, even though a hardship may be worked. Fraud or mistake may entitle a party to relief, but if neither of these elements exist, the contract must be carried out according to its terms. We think the plaintiffs were required to present this claim and make an effort to have it adjusted according to the contract; failing in that they had the option to bring an action, or sign the certificate and waive the claim.
A point is presented, that the last payment was in fact made before the certificate was given. There is no finding on the subject, and the evidence leaves it in doubt how the fact was, but it is manifest from the evidence of one of the plaintiffs that the intention was to comply with the contract in respect to the certificate. He testified that he supposed he had signed the receipt, but did not until after the payment. If this was so, it is evident that the payment and making the certificate were regarded as simultaneous acts, and intended to be so. This witness also testified that the clerk told him, when he signed the certificate, in substance, that it applied only to extra work. This is not material, because the clerk had no power to change the effect of the certificate, and also, because the fact is not found. There seems to be some equity at least in the plaintiff's claim, but by the terms of the contract and his acts, he is precluded from enforcing it in this action.
The judgment must be affirmed.
All concur.
Judgment affirmed. *Page 370