Huber v. St. Joseph's Hospital

• Decision Date: 28 December 1905
• Citation: 11 Idaho 631,83 P. 768
• Parties: HUBER v. ST. JOSEPH'S HOSPITAL
• Court: Idaho Supreme Court

83 P. 768

11 Idaho 631

HUBER v. ST. JOSEPH'S HOSPITAL

Supreme Court of Idaho

December 28, 1905

BUILDING CONTRACTS-EVIDENCE-ARCHITECT AGENT OF OWNER-EXTENSION OF TIME-APPLICATION FOR IN WRITING-WAIVER-FINAL CERTIFICATE-ARBITRATION.

1. In a building contract where it is stipulated that no allowance for delay in the completion of the building shall be made unless a claim therefor is presented in writing within twenty-four hours after the occurrence of such delay, where all delays are occasioned by the architect, who is the agent of the owner, and he leads the contractors to believe that the required extension of time will be given without an application in writing therefor, held that the application in writing is waived, and the owner is not entitled to any deductions from the contract price because of such delays.

2. It was error for the court to reject any testimony offered showing that the owner by her own acts or the acts of her agent, had waived the stipulation in the contract requiring a written application for an extension of time.

3. Under the contracts in question, the final certificate or estimate of the architect was not conclusive on the appellants.

4. Under the provisions of section 3229 of the Revised Statutes the stipulation in a contract by which any party thereto is restricted from enforcing his right under the contract by the usual proceedings in the ordinary tribunals of the state is void.

(Syllabus by the court.)

APPEAL from the District Court of Nez Perce County. Honorable Edgar C. Steele, Judge.

Action to foreclose a mechanic's lien. Judgment for plaintiffs. Plaintiffs appealed. Judgment reversed.

Judgment reversed and a new trial granted. Costs awarded to appellant.

George W. Tannahill, for Appellants.

The rule that parol evidence cannot be received to contradict, add to or modify or explain a written contract is not applicable where a modification or change is alleged subsequent to the execution of the writing. This has been laid down clearly and universally. (1 Greenleaf on Evidence. Redfield's ed., 352; McCauley v. Keller, 130 Pa. 53, 17 Am. St. Rep. 758, 18 A. 607; Bannon v. Aultman, 80 Wis. 307, 27 Am. St. Rep. 37, 49 N.W. 967; Davis v. Crookston Water Works Co., 57 Minn. 402, 47 Am. St. Rep. 622, 59 N.W. 482, Harris v. Murphy, 119 N.C. 34, 56 Am. St. Rep. 656, 25 S.E. 972, 34 L. R. A. 803; Emmerson v. Slater, 22 How. 28, 16 L.Ed. 360; DeBoom v. Priestly, 1 Cal. 206, and cases cited in note; McFadden v. O'Donnell, 18 Cal. 160.) Where an architect also acted as the owner's superintendent of the work, and, on the contractors complaining to him of delays caused by other contractors, the superintendent assured him that he was entitled to additional time therefor, and conceded the entire amount of time demanded, the fact that no demand for additional time was made on the architect in writing was immaterial. (Vanderhoof v. Shell 42 Or. 578, 72 P. 126.) A stipulation in a building contract as originally made that the contractor should make no claim for additional work, unless the same was done under order from the architect, and such claim be made in writing, did not apply to work done pursuant to alterations made in the contract by subsequent agreement of the parties. ( Wilkins v. Wilkerson (Tex. Civ. App.), 41 S.W. 178; Crowley v. United States Fidelity & G. Co., 29 Wash. 268, 69 P. 784; Barilari v. Ferrea, 59 Cal. 1.) "An innocent contractor should not be made to suffer. . . . If the defendants themselves, through their agents, rendered it impossible for the claimant to perform his engagement, he ought not to be visited with the penalty of nonperformance." (Peck v. United States, 102 U.S. 64-66, 26 L.Ed. 46; Vanderhoof v. Shell, 42 Or. 578, 72 P. 126; Phillips on Mechanics' Liens, sec. 147, p. 255; Wilkens v. Wilkenson (Tex. Civ. App.), 41 S.W. 178; Atkinson v. Woodmansee, 68 Kan. 71, 74 P. 640, 64 L. R. A. 325; Erskine v. Johnson, 23 Neb. 261, 36 N.W. 510; O'Keefe v. Corporation of St. Francis Church, 59 Conn. 551, 22 A. 327.) "Where an architect's certificate is refused in bad faith, recovery may be had without it." (Perry v. Levenson, 82 App.Div. (N. Y.) 94, 81 N.Y.S. 586; Vanderhoof v. Shell, 42 Or. 578, 72 P. 126.) "This certificate [the architect's] is conclusive of the rights of all parties concerned, unless it can be shown that it was obtained by the owner by collusion or fraud." ( Dingley v. Green, 54 Cal. 333; Hot Springs R. Co. v. Maher, 48 Ark. 522, 3 S.W. 639; Moore v. Kerr, 65 Cal. 519, 4 P. 542.)

Charles L. McDonald, for Respondents.

"If the action is on a special contract, proof of a substantial compliance with the terms of the entire instrument must be offered to entitle the builder to recover." (Blythe v. Poultney, 31 Cal. 233; Coburn v. Hartford, 38 Conn. 290; Graham v. Trimmer, 6 Kan. 230; Cunningham v. Jones, 20 N.Y. 486; Jackson v. Cleveland, 19 Wis. 400; McNeil v. Armstrong, 81 F. 943, 27 C. C. A. 16; Florida N. R. R. Co. v. Southern Supply Co., 112 Ga. 1, 37 S.E. 130.) "Where parties capable of contracting have deliberately entered into a written agreement in which by all just rules of construction the certificate of the architect is made a condition precedent to a right, such condition must be performed." (Hanley v. Walker, 79 Mich. 607, 45 N.W. 59, 8 L. R. A. 207; Tetz v. Butterfield, 54 Wis. 242, 41 Am. Rep. 29, 11 N.W. 531; Stose v. Heissler, 120 Ill. 433, 11 N.E. 161, 60 Am. Rep. 563; Holmes v. Richet, 56 Cal. 307, 38 Am. Rep. 54; Scammon v. Denio, 72 Cal. 343, 14 P. 98; Tally v. Parsons, 131 Cal. 516, 63 P. 833; Myers v. Pacific Construction Co., 20 Or. 603, 27 P. 584; United States v. Ellis, 2 Ariz. 253, 14 P. 300.) "The only grounds upon which a certificate, estimate or determination or decision may be impeached are fraud, or such gross mistakes as would imply bad faith, or a failure to exercise an honest judgment." (Dingley v. Green, 54 Cal. 333; Moore v. Kerr, 65 Cal. 519, 4 P. 542; United States v. Walsh, 108 F. 502; Brownell Imp. Co. v. Critchfield, 197 Ill. 61, 64 N.E. 332; Eldridge v. Fuhr, 59 Mo.App. 44.) "To constitute sufficient fraud to avoid a decision, the architect or other person whose decision is impeached must have knowingly and willfully disregarded his duty." ( Gilmore v. Courtney, 158 Ill. 432, 41 N.E. 1023; Snell v. Brown, 71 Ill. 133.) "Mere mistake or error of judgment form no grounds for impeachment." ( Whiteman v. New York, 21 Hun, 117; McAlpine v. St. Clair Female Academy, 101 Wis. 468, 78 N.W. 173; Mitchell v. Daugherty, 86 F. 859.) "In alleging fraud it is well settled, both in law and in equity, that the mere general averment without setting out the facts upon which the charge is predicated, is insufficient." 9 Ency. of Pl. & Pr. *686, and numerous cases there cited.) "In alleging fraud, it will not suffice to say that the parties fraudulently procured or induced or fraudulently did this or that, or that he committed or was guilty of fraud. The facts which constitute the fraud must be stated." (Bliss on Code Pleading, sec. 211.) "In pleading fraud, the facts constituting the fraud must be specifically set forth." (People v. Healey, 128 Ill. 9, 15 Am. St. Rep. 90, 20 N.E. 692; Bickle v. Irvine, 9 Mont. 251, 23 P. 244; Conant v. National State Bank, 121 Ind. 324, 22 N.E. 250; Woodroof v. Howes, 88 Cal. 184, 26 P. 111; Albertoli v. Branham, 80 Cal. 631, 13 Am. St. Rep. 200, 22 P. 404; Kerr v. Steman, 72 Iowa 241, 33 N.W. 654.) "A plaintiff cannot plead performance and recover under proof of waiver of performance." (4 Ency. of Pl. & Pr. 631.) "In an action on a contract, a party cannot under an allegation of performance prove facts in excuse of performance." ( Mackey v. Swartz, 60 Iowa 710, 15 N.W. 577.) "If the allegations be of full performance, proof of a waiver and modified performance is inadmissible and the error of receiving it against objection cannot be cured by permitting amendment of the allegation on motion for new trial." (Trumbridge v. Read, 51 Hun, 644, 3 N.Y.S. 908.) "An averment of performance is not supported by proof of waiver of performance." ( McDermott v. Grimm, 4 Colo. App. 39, 34 P. 909; Britton v. Turner, 6 N.H. 481, 26 Am. Dec. 713; Pomeroy's Remedies and Remedial Rights, sec. 554.) "The plaintiff cannot show a waiver of performance or a modification of any part of a contract without alleging it." (9 Cyc. 727.) "Under an allegation of performance, an excuse for nonperformance is not admissible in evidence, nor can a defendant show a reason for nonperformance under a plea of covenants performed, as it negatives instead of supports the issue." (Fauble v. Davis, 48 Iowa 462; Stone v. Dennis, 3 Port. (Ala.) 231; Cherry v. Newby, 11 Tex. 457.)

SULLIVAN, J., AILSHIE, J. Stockslager, C. J. Ailshic, J., and Sullivan, J., concurring.

OPINION

The facts are stated in the opinion.

SULLIVAN, J.

This action was brought to foreclose two liens for a balance of about $ 2,000 claimed to be due for the erection of a hospital, and power-house in connection therewith, at the city of Lewiston. It appears from the record that on May 6 1902, the appellants entered into a contract whereby they agreed, for the consideration of a certain sum therein mentioned, to furnish certain of the materials for and erect, according to the plans and specifications furnished by the architect, said hospital building, and agreed to fully complete and have the same ready for occupancy by October 1, 1902; that another contract was entered into by the appellants on the 14th of October, 1902, whereby they agreed to erect a building to be used as a power-house in connection with said hospital building, which building they agreed to fully complete and have ready for occupancy by December 25, 1902. Said contracts are set forth in the record.

A...