OPINION ON MOTION FOR REHEARING.
NORTONI, J.On motion for rehearing it is 'earnestly argued the court did not sufficiently consider the principal point presented in the appeal, which is to the effect that, notwithstanding' the finding of the court on the facts, the judgment should be for plaintiff. It is said in this connection that article 5 authorized the architect to terminate all relations with the contractor, take the work out of his hands, and complete it otherwise; also that, in any view of the evidence, it appears the architect discharged the contractor, Banner Land & Building Company, on December 21, and completed the building through Murphy, by the day’s work. In this the architect acted for plaintiff, but under the contract provisions conferring authority on the part of defendant with respect of the matter as well. Therefore it is said that, as the architect terminated the relations of the contractor and took the building out of its hands on- December 21, the mere fact that the architect failed to issue certificates of audit for the bills accrued thereafter is of no consequence, in view of the recent decision of the Supreme Court in the case of Lackland v. Renshaw, 256 Mo. 133, 165 S. W. 314, for that it appears all of the moneys expended went into the completion of the building and no substantial loss was entailed on the surety as a result of the failure of the architect to audit the bills and issue certificates in the precise form required by the contract. But it is clear this argument predicates upon the fact that the architect dis*149pensed with, the contractor and took charge of the work on December 21, under the authority of the contract. Manifestly such does not appear with the case in its present posture before us. In any view— and so much is conceded — the court found all of the facts against plaintiff.
It is not conceded that the architect discharged the contractor and took charge of the work on December 21 as the contract requires. Article 5 of the contract authorizes the owner, for failure on the part of the contractor to properly prosecute the work, to provide labor and materials and complete the same. But this provision appears to be operative only after three days’ written notice to the contractor. On December 9 the architect, acting for the owner, gave the contractor proper notice calling attention to article 5 of the contract and reciting substantially that, unless the work was taken up on or before the 12th of December, the architect would take charge of it under the ■ contract. But, the evidence is — and manifestly, in view of the finding of the court for defendant, the court so found the fact to be — that the owner did not act on this notice and in accordance with it. On the contrary the architect, Mr. Mariner, Mr. Atwood, the surety company’s agent, and Mr. Hopkins, the vice-president of defendant surety company, met and agreed the work should proceed in charge of the contractor under the supervision of William Morris. This agreement, manifestly operated to dispense with the notice theretofore given on December 9 by the architect, and, according to the finding of facts, the contractor remained in charge of the work until December 21, through its superintendent, William Morris. Finally, on December 21, the architect peremptorily discharged the contractor and settled accounts with William Morris, its superintendent. Thereupon one Murphy was placed in charge of the work, it is said, under *150arrangement for compensation by the day, and as the representative of plaintiff owner, to complete the building.
It is true the architect had authority, under article 5 of the contract, to dispense with the contractor, but he could only do so on giving three days’ notice, and moreover the architect is required by article 5 to certify that the “refusal, neglect, or failure” on the part of the contractor “is sufficient ground for such action” —that is, of dispensing with the contractor’s services and taking charge of the work to be completed under the direction of the owner. No notice whatever was given by the architect in respect of this matter and. no certificate of any sort was made by him concerning the ground of his action in discharging- the contractor on December 21. Moreover, it appears that, on the very day before, the architect treated the contractor as still in charge of the work, for he served a written notice on it — Banner Land & Building Company — to complete the brickwork within three days thereafter. The court evidently found the fact to be that the architect never terminated the contractor’s relation, as such, with the building, and that he merely took charge of the work on December 21 without heeding the contract requirement in respect of that matter.
As we read and interpret article 5 of the building contract, it was a condition precedent to the right of the owner to discharge the contractor and take charge of the work, to give three days’ written notice of his intention to do so, through the architect. This provision touching three days’ notice refers as well, in our view, to the right of the owner through the architect to dispense with the contractor and take charge of the work for the purpose of completing- the building as it does to the subject-matter immediately following that provision concerning his right to provide labor and materials, with respect to which the contractor *151is in default. In this view, it appears the architect was a mere interloper when he dispensed with the contractor and discharged it and its superintendent, William Morris, on December 21, and took charge of the building for plaintiff owner to complete it by day labor. Such being true, of course the question concerning the sufficiency of certificates of audit in respect of expenditures after that date is of no avail, for that, in ho view of the case, can the surety be held for work done by the owner after December 21 through employing men by the day in completing the building, when the owner was without right whatever in dispensing with the contractor and taking possession of the building. It is manifest that the architect bungled the matter in failing to dispense with the contractor and in taking over the work for plaintiff owner without heeding the provisions of article 5 of the contract touching that matter.
The motion for a rehearing should be overruled. It is so ordered.
Reynolds, P. J., and Allen, J., concur.