Hebert v. Hebert

• Decision Date: 07 April 1906
• Citation: 191 Mass. 403,77 N.E. 822
• Parties: HEBERT v. DEWEY. DEWEY v. HEBERT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

191 Mass. 403

77 N.E. 822

HEBERT

v.DEWEY.

DEWEY

v.HEBERT.

Supreme Judicial Court of Massachusetts, Hampshire.

April 7, 1906.

Exceptions from Superior Court, Hampshire County; L. L. B. Holmes, Judge.

Two actions. The first by Valerie Hebert, administratrix, against P. H. Dewey; the second by Dewey against Hebert. Rulings were adverse to Dewey, and he excepted. In second action, exceptions overruled; in first action, exceptions sustained.John C. Hammond and Geo. P. O'Donnell, for Valerie Hebert.

T. M. Connor and S. S. Taft, for P. H. Dewey.

KNOWLTON, C. J.

The first of these actions was brought by the plaintiff's intestate to recover upon a contract in writing for building a house for the defendant, and also for extra work done in connection with the contract. The second is a cross-action, brought to recover damages for the nonperformance of the contract, and also for money lent to the defendant, and money had and received by the defendant to the plaintiff's use. In the opinion of the judge, it appeared at the close of the evidence that the matters relied on in the cross-action were substantially the same as those set up in the answer and in the declaration in set-off in the first suit. The defendant in that suit was therefore ordered by the court to elect, whether he would rely upon these matters as a defense under his answer, or would waive this part of his defense and stand upon his declaration in the cross-action. He elected to take the benefit of them under his answer, and a verdict for the defendant was accordingly rendered in the cross-action. Assuming the facts to be as held by the judge, this order was proper under the rules stated in Cox v. Wiley, 183 Mass. 410, 67 N. E. 367. The facts are not shown to be otherwise. The defendant now concedes that if there was no error in other parts of the case he was not aggrieved by the order to elect. The exception to this order is overruled.

The first important exception relates to the rulings and refusals to rule in regard to certificates given to the plaintiff's intestate by the architect, upon which payments were made by the defendant under the contract. The contract provided for three payments to be made at different stages in the progress of the work, and a fourth after the completion of it. Then followed this proviso: ‘That in each case of the said payments, a certificate shall be obtained from and signed by said F. S. Newman, architect, to the effect that the work is done in strict accordance with the drawings and specifications, and that he considers the payment properly due; said certificate, however, in no way lessening the total and final responsibility of the contractor; neither shall it exempt the contractor from liability to replace work, if it be afterwards discovered to have been done ill, or not according to the drawings and specifications, either in execution or materials,’ etc.

The third certificate, in its substantive parts, is as follows: ‘This is to certify that under the terms of the contract dated,’ etc., ‘Mr. Joseph Hebert, contractor for building your house, is entitled to the third payment, amounting to $1,200.’ The first and second certificates were in the same form; but the architect refused to give the fourth and final certificate, and the plaintiff's intestate never obtained it. At the trial the evidence was conflicting upon all the questions in issue, and there was much dispute as to whether the plaintiff's intestate had performed the contract, or had done improper work and used improper materials in violation of it. The judge instructed the jury, in substance, that so far as the work and materials which had previously been supplied were known to the architect at the time of giving one of these certificates, the certificate would be conclusive upon the defendant as to the quality and fitness of the work and materials, and it would not afterwards be open to the architect or the owner to question it. He treated each of these certificates as a final determination, in favor of the contractor, that the contract had been properly performed up to that time, in all parts of which the architect had knowledge. It is well settled that, in the absence of fraud, or such mistake as prevents him from exercising his judgment upon the case, the parties are bound by the certificate of an architect, made under the authority of a building contract like that now before us. His position is like that of an arbitrator, to determine the particular matter submitted to him. Palmer v. Clark, 106 Mass. 373, 389;Flint v. Gibson, 106 Mass. 391;Robbins v. Clark, 129 Mass. 145.National Contracting Co. v. Com., 183 Mass. 89, 66 N. E. 639;Norcross v. Wyman, 187 Mass. 25,27 N. E. 347;White v. Abbott, 188 Mass. 99, 74 N. E. 305. The only question of difficulty in this part of the case arises from the peculiar language of the contract as to the effect of the certificates. They are referred to as ‘in no way lessening the total and final responsibility of the contractor,’ etc. This language furnishes ground for an argument that the certificates given prior to the completion of the work were intended to be merely intermediate or progress certificates, for the benefit of the builder, given to enable him to obtain payments on account, during the progress of the work. Such certificates are not conclusiveas to the final payment, nor upon a claim for damages, nor on a quantum meruit. 1 Hudson, Building Contracts, 288; Tharsis Sulphur & Copper Co. v. McElroy, 3 App. Cas. 1040; Ford v. Railroad Co., 54 Iowa, 723, 7 N. W. 126. While the matter is not free from doubt, we are inclined to hold that these certificates were intended to be something more than progress certificates, and that they are to be held final in their determination of all matters which were then within the knowledge of the architect. In the first place, the contract makes no distinction in this particular between the certificates to be given before the work is completed and the final certificate. Then the special provision as to the effect is that they shall not relieve the contractor from liability for inferior work, ‘if it be afterwards discovered to have been done ill, * * * either in execution or materials,’ etc. Inasmuch as the general rule would make such certificates conclusive, we are of opinion that they should be held to leave the claims open only as to deficiencies that are afterwards discovered, and that this exception of the defendant should be overruled.

The defendant contended that the plaintiff could not recover under the contract, because her intestate failed to obtain from the architect a certificate that the final payment was due. The question is whether a sufficient justification was shown for this failure. The instruction to the jury on this point was as follows: ‘If the defendant's architect capriciously withheld the final certificate, and capriciously allowed the contractor to believe that nothing more remained to be done to entitle him to such certificate, the contractor is thereby relieved from his obligation to secure the certificate.’ This was in accordance with the plaintiff's request, except that the judge left out the word ‘fraudulently’ which was used in the request with ‘capriciously.’ The law bearing upon this part of the case has not been definitely settled in this commonwealth. There is a class of cases arising under policies of insurance and other similar contracts, in which it is held that the procurement of the certificate, called for by the contract, is a condition precedent to the plaintiff's recovery. Johnson v. Phoenix Ins. Co., 112 Mass. 49, 17 Am. Rep. 65;Audette v. L'Union St. Joseph, 178 Mass. 113, 59 N. E. 668, and cases there cited. The reason why it is not open to the plaintiff in these cases to show that he could not obtain the certificate, is because the nature of the contract and the purpose of the requirement of a certificate are such as to make the recovery conditional upon the presentation of the paper, for the purpose of affording the insurer an assurance against fraud, and giving him additional evidence that there is a legal liability. Johnson v. Phoenix Ins. Co., ubi supra. The promise is to pay only upon the existence of conditions show by a particular kind of proof, which the parties prescribe as the only evidence that will be deemed sufficient to establish the fact. In such contracts the plaintiff takes upon himself the obligation to furnish the required proof, and assumes the risk of whatever difficulty there may be in procuring it. Whether a contract is of this kind is a question of construction, dependent upon the meaning of the parties, as ascertained from the writing. A provision for a certificate by an architect, in a building contract, stands differently. The architect is the agent of the owner, to perform an act for the convenience of both parties, in regard to a matter with which he is directly connected as an employé. It is assumed by the contracting parties and implied in the contract that he will do his duty, and will act in good faith in determining whether a certificate should be granted. In cases under provisions like the one before us, it is everywhere held that the contractor may recover without a certificate, if the circumstances relieve him from the obligation to obtain one. What circumstances are sufficient for this purpose is the only question. If the owner wrongfully interferes to prevent the giving of a certificate, it is universally held that this will entitle the contractor to recover without it. Beharrell v. Quimby, 162 Mass. 571, 575, 39 N. E. 407;Whitten v. New England Live Stock Co., 165 Mass. 343, 345, 43 N. E. 121;Battsburg v. Vyse, 2 H. & C. 42;Whelen v. Boyd, 114 Pa. 228, 6 Atl. 384. Many of the authorities...