Gerisch v. Herold

CourtUnited States State Supreme Court (New Jersey)
Writing for the CourtSWAYZE, J.
Citation83 A. 892,82 N.J.L. 605
Decision Date20 June 1912
PartiesGERISCH v. HEROLD.
83 A. 892
82 N.J.L. 605

GERISCH
v.
HEROLD.

Court of Errors and Appeals of New Jersey.

June 20, 1912.


(Syllabus by the Court.)
83 A. 893
(Additional Syllabus by Editorial Staff.)

Error to Supreme Court.

Action by John C. Gerisch against Rudolph Herold. Judgment for plaintiff (81 N. J. Law, 171, 79 Atl. 1028), and defendant brings error. Reversed, and venire de novo awarded.

The plaintiff agreed to erect and finish a house in a good workmanlike and substantial manner under the direction of Joseph Turck, architect, to be testified by a writing or certificate under the hand of Turck, and also to find and provide good, proper, and sufficient materials for completing and finishing all the work. The defendant agreed to pay for the same in four payments, the last of which, $3,000, was to be made when all the work was completed according to the plans and specifications to the satisfaction of the owner or his representative. The contract also provided in the ordinary form that, should any dispute arise respecting the true construction or meaning of the drawings or specifications, it should be decided by Joseph Turck, and his decision should be final and conclusive. This suit is for the last payment. One plea averred that the plaintiff did not complete all the work to the satisfaction of the owner or his representative. The replication to the plea averred that the owner fraudulently withheld his satisfaction, and on this issue was joined. This issue was not submitted to the jury, and the defendant did not request its submission. He relied upon a motion to nonsuit for failure of the plaintiff to prove that the work was done to the satisfaction of the owner or his representative. The architect had certified that the plaintiff was entitled to the payment of $3,000 by the terms of the contract.

Weller & Lichtenstein, of Hoboken, for plaintiff in error. J. Emil Walscheid, of Town of Union, for defendant in error.

SWAYZE, J. (after stating the facts as above). Contracts requiring the work to be satisfactory to the employer are valid. Gwynne v. Hitchner, 66 N. J. Law, 97, 48 Atl. 571. This decision has been approved in this court in a suit involving the same contract. Gwynne v. Hitchner, 66 N. J. Law, 97, 48 Atl. 571. A distinction is sometimes made between cases where the fancy, taste, sensibility, or judgment of the promisor are involved, and cases where only operative fitness or mechanical utility is involved. 9 Cyc. 618, ff. Gwynne v. Hitchner was a case of the former class, and, although the case of a building contract is somewhat different, we see no reason to doubt that the mere taste or fancy of the owner may be an important element in a dwelling house at least. The Supreme Court has applied the rule to that situation, and we do not question the soundness of its decision. Welch v. Hubschmitt Co., 61 N. J. Law, 57, 38 Atl. 824. In the present case the parties made a clear distinction between the workmanship and the materials. The character of the former was to be testified to by Turck's certificate. The only provision as to the latter is that they should be good, proper, and sufficient for completing the work. The workmanship might...

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13 practice notes
  • Grover v. Universal Underwriters Ins. Co.
    • United States
    • United States State Supreme Court (New Jersey)
    • May 15, 1979
    ...103, 111, 24 A. 319 (Ch. 1892); W. Sturges, A Treatise on Commercial Arbitrations and Awards 613-618 (1930); see also Gerisch v. Herold, 82 N.J.L. 605, 83 A. 892 (E. & Having concluded that the arbitrator had jurisdiction to determine the coverage issue, we now turn to the validity of the a......
  • Dewar v. Taylor
    • United States
    • United States State Supreme Court of Idaho
    • September 24, 1926
    ...Ward, 266 Ill. 259, Ann. Cas. 1916B, 497, 107 N.E. 593; Isbell v. Anderson Carriage Co., 170 Mich. 304, 136 N.W. 457; Gerisch v. Herold, 82 N.J.L. 605, Ann. Cas. 1913D, 627, 83 A. 892; Waite v. C. E. Shoemaker & Co., 50 Mont. 264, 146 P. 736.) If parties voluntarily assume the obligations a......
  • Southern, School Bldgs., Inc. v. Loew Elec., Inc., No. 3-879A241
    • United States
    • Indiana Court of Appeals of Indiana
    • July 9, 1980
    ...(absent provision to the effect that architect's certificate is conclusive, it is not binding on the parties). Gerisch v. Herold (1913), 82 N.J.L. 605, 83 A. 892 (proof of owner's satisfaction as well as architect's certificate required under contract); Smith v. Goff (1958), Okl., 325 P.2d ......
  • Terminal Const. Corp. v. Bergen County Hackensack River Sanitary Sewer Dist. Authority, No. A--104
    • United States
    • United States State Supreme Court (New Jersey)
    • April 25, 1955
    ...51 N.J.L. 1, 16 A. 316, 2 L.R.A. 544 (Sup.Ct.1888); Bradner v. Roffsell, 57 N.J.L. 412, 31 A. 387 (E. & A.1894); Gerisch v. Herold, 82 N.J.L. 605, 83 A. 892 (E. & Whether the engineer is an agent, consultant or arbiter depends upon the construction of the pertinent provision or provisions o......
  • Request a trial to view additional results
13 cases
  • Grover v. Universal Underwriters Ins. Co.
    • United States
    • United States State Supreme Court (New Jersey)
    • May 15, 1979
    ...103, 111, 24 A. 319 (Ch. 1892); W. Sturges, A Treatise on Commercial Arbitrations and Awards 613-618 (1930); see also Gerisch v. Herold, 82 N.J.L. 605, 83 A. 892 (E. & Having concluded that the arbitrator had jurisdiction to determine the coverage issue, we now turn to the validity of the a......
  • Dewar v. Taylor
    • United States
    • United States State Supreme Court of Idaho
    • September 24, 1926
    ...Ward, 266 Ill. 259, Ann. Cas. 1916B, 497, 107 N.E. 593; Isbell v. Anderson Carriage Co., 170 Mich. 304, 136 N.W. 457; Gerisch v. Herold, 82 N.J.L. 605, Ann. Cas. 1913D, 627, 83 A. 892; Waite v. C. E. Shoemaker & Co., 50 Mont. 264, 146 P. 736.) If parties voluntarily assume the obligations a......
  • Southern, School Bldgs., Inc. v. Loew Elec., Inc., No. 3-879A241
    • United States
    • Indiana Court of Appeals of Indiana
    • July 9, 1980
    ...(absent provision to the effect that architect's certificate is conclusive, it is not binding on the parties). Gerisch v. Herold (1913), 82 N.J.L. 605, 83 A. 892 (proof of owner's satisfaction as well as architect's certificate required under contract); Smith v. Goff (1958), Okl., 325 P.2d ......
  • Terminal Const. Corp. v. Bergen County Hackensack River Sanitary Sewer Dist. Authority, No. A--104
    • United States
    • United States State Supreme Court (New Jersey)
    • April 25, 1955
    ...51 N.J.L. 1, 16 A. 316, 2 L.R.A. 544 (Sup.Ct.1888); Bradner v. Roffsell, 57 N.J.L. 412, 31 A. 387 (E. & A.1894); Gerisch v. Herold, 82 N.J.L. 605, 83 A. 892 (E. & Whether the engineer is an agent, consultant or arbiter depends upon the construction of the pertinent provision or provisions o......
  • Request a trial to view additional results

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