On Rehearing.
Watson Company and the American Surety Company filed separate motions for rehearing ; appellees (subcontractors) filed a joint motion for rehearing, also a motion to retax the costs.
As the Terminal Building Corporation, Watson Company, and the American Surety Company eacn prosecuted a successful appeal, costs incident thereto were, in our opinion, properly taxed against appellees; therefore the motion to retax is overruled. Articles 1857 and 1870, R. S. 1925.
The only question raised in the motion of appellees, not fully discussed m the original opinion, is the contention that, as the architect accepted Shaw’s work and issued a certificate to that effect December 14, 1925, he was entitled to interest on the amount owing for the period beginning 60 days after December 14, 1925, to the date of payment,' which he contends amounts to the sum of $6,-595.86.
In the original opinion we stated that the jury found, in response to an issue, that the architect accepted Shaw’s work on December 14, 1925, but omitted to say in that connection that Shaw failed to present the architect’s certifiéate to Watson Company and asserted no rights thereunder until after receiving payment in full of the principal sum due him; in fact, the evidence is undisputed that Watson Company had no notice of the architect’s acceptance until in the fall (October or November) of 1929, final payment to Shaw having previously been made on April 10, 1928. In this situation we do not think Watson Company was obligated in any way by the undisclosed acceptance or that Shaw could predicate thereon any claim until brought to the notice of Watson Company.
In its motion Watson Company insists that, the case having proceeded below on the theory that’plaintiffs’ causes of action were ex delicto in nature; therefore in view of the holding of this court to the effect that they were ex contractu, and upon that theory disposed -of the appeal, that the case should be remanded as to all parties, in order to afford defendants an opportunity to urge defenses appropriate to actions based upon contracts.
We held, as disclosed in the original opinion, that the causes of action alleged and proven are essentially ex contractu; manifestly this was the theory upon, which Watson Company proceeded in the lower court, tersely and concretely expressed in its twentieth assignment of error as follows:
“The court erred in overruling and in not sustaining the following objection urged by this defendant to Special Issues submitted to the jury as between the plaintiff and inter-venors and this defendant, towit:
“Because under the pleadings in this cause *483and the contracts sued on, the plaintiff and intervenors, respectively, were entitled to receive payment for their work when due under the respective contracts and the only issues that should be submitted to the jury under the pleadings and testimony are such issues as should elicit from the jury findings as-■to when the indebtedness to the plaintiff and intervenors, respectively, was due, and all questions as to whether acts or omissions of-this defendant occasioned delay to the plaintiff and intervenors, respectively, in receiving payment, are immaterial.”
Consistent with the dominant thought disclosed in this assignment, we reformed the judgments against Watson Company (and the surety) on the theory presented in its proposition No. 11 as follows:
“The court erred in refusing to instruct tne jury that as against Watson Company none of the indebtedness on which plaintiffs sue for interest was due until the respective dates of the settlement agreements between plaintiffs and the Building Corporation, and that as against Watson Company no interest should be considered prior to those dates, because the evidence shows that the claims of the respective plaintiffs for extra work were unliquidated, and the amount due the plaintiffs for such extra work was not known either to the plaintiffs or to Watson Company, and the amount was not definitely determined as to C. L. Shaw until January 7th, 1927, as to 'Standard Concrete Tank Co. until February 19th, 1927, and as to Blue & Pittman until February 7th, 1927.”
Therefore we find no merit in the suggestion of Watson Company that the case ought to be remanded to afford an opportunity to urge defenses appropriate to an action ex contractu, because it is evident that was precisely the theory that shaped its defense in the court below as well as its insistence on appeal.
No complaint was made that the architect failed to issue proper estimates as the work progressed, nor that the prices fixed by him were not correct; the questions presented were as to the amounts due plaintiffs on final" settlement and the dates when same became due. We held that these facts, that is, the amounts due plaintiffs by Watson Company on final settlement, having been -ascertained by the parties in their own way, that is, by voluntary conferences, that all provisions of the contracts requiring architect’s certificates as conditions precedent to payments were waived, and that neither party could base a valid contention on the non-action, bias, or interest of the architect. Furthermore, Watson Company having failed to request an issue to determine whether it was excused from furnishing the owner an architect’s certificate on account of the interest or bias of the architect cannot urge such matter for the first time in a motion for rehearing.
After due consideration, we overrule all motions for rehearing.