Several objections were raised on the trial to the admission or rejection of evidence; but two of which were insisted on in the argument at bar. With the view of showing that work extra and outside of the contract was done by the plaintiff, after putting in evidence the several working drawings furnished to him in the progress of the work by the architect named in the contract, he offered to prove that the work was performed according to the plans furnished; that they showed work which did not appear on the plans annexed to the contract, and in that respect the plans varied. The evidence offered was objected to by ihe defendant on the ground that the same was irrelevant and incompetent; and the objection was overruled by the referee. It is now urged that this ruling was erroneous, not for the reasons assigned to the referee, but because the contract fixed a tribunal for valuation of extra work, and it could not rightfully be investigated by' a court of law. If there is really anything in this grofind, it comes too late, being urged .here for the first time. Ho such ground was hinted at in the defendant’s answer or
After the plaintiff had twice, and the defendant had intermediately rested, the defendant called the architect, and proposed to re-examine him as to new matter, and not to rebut statements of the plaintiff’s witnesses after the latter had resumed the examination. This the referee would not allow to be done, and sustained an objection to receiving the proposed testimony. The refusal of the referee, after the defendant had once rested, to allow him to open the case and reexamine his witness as to new matter, is not a subject for review in this court. It was entirely discretionary with the referee, and the refusal is not a ground for exception.
The only remaining question is, whether the plaintiff was entitled to recover the amount of twenty-seven hundred dollars, the last installment, stipulated to be paid on the completion of the work. The plaintiff and Abraham Allen contracted to erect and finish the building by the 1st April, 1855. Allen was to furnish the materials and do the mason work, for which he was to be paid the sum of $17,800, and the plaintiff to furnish the materials and do the carpenter work, for $11,200. These payments, both to the mason and carpenter, were to be by installments as the work progressed. The last payment of $2,700 was to be made to the plaintiff on the completion of the work. The building was to be erected and finished agreeably to the drawings and specifications of Houdayer, the architect, annexed to the contract. The work was to be done
It is conceded that the building was not finished within the time prescribed by the contract, viz., 1st April, 1855. The referee finds that the work was completed by the 1st September, and the plaintiff was prevented from completing it within the time specified by the agreement in consequence of the interruptions and delays which occurred in the progress of the mason work, and by various alterations suggested and required by the architect; that the work was carried on to its completion, with the knowledge and under the supervision of the architect, and, under the circumstances, was completed within a reasonable time, and as soon as 'the interruptions and suggestions permitted. When, the defendant and his agents pre
It was a provision of the contract that the building should be erected and finished agreeably to certain plans and specifications, in a workmanlike manner, to the satisfaction and under the direction of Houdayer, the architect, to be testified by a writing or certificate under his hand, and the defendant was to pay the sums named, in the manner and at the times mentioned in the agreement, provided that in each case a certificate was obtained, signed by the architect. The substance of this is, that the work was to be done under the direction of the architect, who was to be satisfied with it as it progressed, and whose satisfaction was to be evidenced by his certificate in writing; and upon obtaining such certificate, the plaintiff was to be paid certain amounts of the gross sum of $11,200, at certain stages of the work. At these stages, if the architect was not satisfied, he could withhold the certificate, and without it the defendant could refuse to pay. The plaintiff was paid the sum of $8,500 (all of the contract price, except the last payment of $2,700), without any dissatisfaction expressed by the architect, and without his written certificate. These payments were made by the defendant, through the architect, acting as his agent, and no question was raised as to a written certificate until after the action was brought. When the plaintiff required payment of the last installment of $2,700, the only objection was that the work had not been completely finished according to the terms of the agreement. Regarding the action, however, as brought exclusively upon the contract, and that the obtaining of the architect’s certificate was a condition precedent to a recovery, a failure in the latter respect would not be fatal to the plaintiff’s right. The architect was the defendant’s agent, and if he unreasonably and in bad faith refused the certificate, the plaintiff is not to be held responsible, but
The judgment of the Supreme Court should be affirmed.
All the judges concurring,
Judgment affirmed.