Hurley v. Kiona-Benton School Dist. No. 27

• Citation: 215 P. 21,124 Wash. 537
• Decision Date: 03 May 1923
• Docket Number: 17630.
• Court: Washington Supreme Court
• Parties: HURLEY et al. v. KIONA-BENTON SCHOOL DIST. NO. 27.

215 P. 21

124 Wash. 537

HURLEY et al. v. KIONA-BENTON SCHOOL DIST. NO. 27.

No. 17630.

Supreme Court of Washington

May 3, 1923

Department 2.

Appeal from Superior Court, Benton County; John Truax, Judge.

Action by J. A. Hurley and another, doing business under the name of Hurley & Leichnitz, against Kiona-Benton School District No 27. Judgment for defendant, and plaintiffs appeal. Affirmed.

Stephen E. Chaffee and R. John Lichty, both of Sunnyside, for appellants.

McGregor & Fristoe and G. W. Hamilton, all of Prosser, for respondent.

PEMBERTON J.

On or about the 15th day of July, 1920, the respondent Kiona-Benton school district No. 27, entered into a written agreement with appellants Hurley and Leichnitz for the installation of plumbing and a heating plant in a school building then being constructed at Benton City. Prior to the execution of this contract there were extended negotiations between the parties, resulting in a proposed written contract being submitted to the board of education of respondent school district. This contract was rejected by the school board, for the reason that certain modifications of the work agreed upon where not shown in the contract. Thereafter a written addenda attached was formally signed by the respondent and appellants. When the plumbing had been practically completed respondent employed one Springsteen to examine the same. A portion of the plumbing was condemned and later replaced by appellants, concerning which portion there is no controversy. Payments were made to appellants in two installments prior to the final certificate. Respondent made demand upon appellants to complete the contract according to the specifications. The architect, disregarding this request and without making an examination of the work, issued the final certificate, in which he certified that the contract had been completed, and that the appellants were entitled to the sum of $2,114, the balance due according to the contract. On the refusal of the respondent to pay the same appellants instituted this action to recover the amount due upon the final certificates.

The respondent in its answer to the complaint put in issue the entire contract, charged collusion between the architect and appellants, alleged that the final certificates were issued without the exercise of judgment of the architect, and were false and fraudulent, alleged failure to perform and defect in workmanship, and asked for damages by reason of the failure on the part of appellants to perform the contract.

The trial court found that respondent was damaged in the amount of $2,836; that there was unpaid on the contract the amount of $2,114, leaving a balance due from appellants to respondent as damages the amount of $722.

It is the contention of appellants that the certificate of the architect was final, and constituted an acceptance of the work; that respondent accepted the work, and is now estopped from claiming that the work was unsatisfactory; that the respondent, having stated its ground for refusing to pay the final certificate, is estopped from making objections on any other theory, and that the failure to submit to arbitration is a waiver of any defects which could have been arbitrated.

It is admitted by appellants that they failed to install about $800 worth of plumbing and to cover the pipes of the heating plant, amounting to about $500, and to install a boiler worth about $900, and substituted therefor a secondhand boiler, which had been purchased for $150. It is admitted that these items were provided in the contract, but contended by appellants that under the architect's construction of the provisions of the contract they were relieved from performing this work.

It is the contention of respondent that the architect had no authority to change the contract, and in certifying that the work had been done according to the contract he acted without authority and without exercising judgment, and such certificate, being issued under gross mistake, is fraudulent, and is not binding upon respondents.

Paragraph 20 of the contract provides as follows:

' Verbal Modifications.--It is distinctly understood that no verbal statement of any person whomsoever shall be allowed in any manner or degree to modify or otherwise affect the terms of this specifications or of the contracts for the work. Changes will be made only in writing, signed by the architect and countersigned by the owner,' ect.

Paragraph 22 of the contract provides as follows:

' Duties of Architects.--The architects shall have charge of the work for the owner, and their duties shall consist in giving on demand such interpretations, either in language, writing or by drawings as in their judgment the nature of the work may require, having particular care that any and all work done and materials used be combined and done as hereinafter described and specified. * * *'

Under the contract the architect was without authority to change the contract. His duties in that respect were limited to interpretations of the contract.

'The architect or engineer, ordinarily; has no implied authority to modify the contract or authorize deviations therefrom.' 4 Elliott on Contracts, p. 39; 6 Cyc. 29.

'But it is held that the architect or engineer cannot dispense with the performance of any substantial part of the contract. And the acceptance of a different class of work from that contracted for will not bind the owner.' 4 Elliott on Contracts, p. 898.

'An unauthorized acceptance of a building by the architect may not waive the

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