Hutchinson v. Bohnsack Sch. Dist.
| Citation | 199 N.W. 484,51 N.D. 165 |
| Parties | HUTCHINSON et al. v. BOHNSACK SCHOOL DIST. |
| Decision Date | 21 June 1924 |
| Court | United States State Supreme Court of North Dakota |
Under a building contract providing that:
“The architect shall have general supervision and direction of the work. He is the agent of the owner only to the extent provided in the contract documents, and when in special instances he is authorized by the owner so to act; and in such instances he shall, upon request, show the contractor written authority. * * *
As the architect is in the first instance the interpreter of the conditions of the contract and the judge of its performance, he shall side neither with the owner or with the contractor, but shall use his powers under the contract to enforce its faithful performance by both.”
-a final certificate by the architect, certifying to the completion of the work, is not conclusive upon the owner as against the failure on the part of the contractor to comply with the specifications included in the contract.
A provision in a building contract that:
-is for the benefit of the contractor, and an instruction that such provision has no bearing on the case is erroneous and prejudicial in an action involving the question as to whether the work done by the contractor complied with the plans and specifications, and the contractor contends and offers proofs to establish that any changes that were made were made at the direction of the architect, were necessary, minor, involved no extra cost, and were consistent with the purposes of the building.
Appeal from District Court, Traill County; C. M. Cooley, Judge.
Action by C. I. Hutchinson and others, doing business as copartners under the firm name of the Hutchinson Hardware Company, against Bohnsack School District. From a judgment for defendant, and from an order denying their motion for judgment notwithstanding the verdict or for a new trial, plaintiffs appeal. Reversed, and new trial ordered.Hutchinson & Lynch, of La Moure, for appellants.
I. A. Acker, of Hillsboro, for respondent.
In 1921 the plaintiffs contracted with the defendant school district to provide and install a hot water heating plant in defendant's schoolhouse. The contract was in writing, and included specifications and drawings. The plant was installed In December, 1921, the architect issued a final certificate to the plaintiff, under which the plaintiff was entitled to and did receive the price contracted to be paid thereunder. The defendant accepted and used the plant. Subsequently, and in February, 1922, at the request of the defendant, the plaintiff made certain repairs thereon. This action is brought by the plaintiff to recover the reasonable value of such repairs.
The answer of the defendant alleged the making of the contract to install the plant; that the work was not done in accordance with the plans and specifications; that, as a result of failure to comply with the plans and specifications on the part of the plaintiff, the plant froze, and was thereby broken and injured; that the labor and materials furnished by the plaintiffs, and for the reasonable value of which they sought to recover, were required to repair the said plant; and the defendant denied that it owed the plaintiffs any sum whatsoever. The defendant further set up a counterclaim against the plaintiffs, realleged the facts set up in its main defense, and alleged that, by reason of the failure of the plaintiff to install in accordance with the plans and specifications, the defendant had been injured and damaged in addition to the amount claimed by the plaintiff for such work and labor, and prayed judgment against the plaintiffs for such excess.
The plaintiffs replied, denying the matters set out in the defendant's counterclaim, and alleged that they had entered into a contract with the defendant for the installation of a heating plant, that the same was installed, and that such changes as were made from the plans and specifications were minor changes, necessary, and under the direction and with the approval of the defendant's architect, and that the plant as installed was accepted by the defendant.
The case was tried to a jury, and the defendant had a verdict on its counterclaim. From the judgment entered on this verdict, and from an order denying their motion for judgment notwithstanding the verdict or for a new trial, plaintiffs now appeal.
[1] The contract for the installation of the heating plant is the standard form issued by the American Institute of Architects. Plans and specifications had been prepared by an architect. These were incorporated in and became a part of the contract. The contract is a document of some length. It will be unnecessary to set out the whole thereof. Those portions of the same which we deem pertinent and controlling are as follows:
“Article 9. The architect shall have general supervision and direction of the work. He is the agent of the owner only to the extent provided in the contract documents, and when in special instances he is authorized by the owner so to act; and in such instances he shall, upon request, show the contractor written authority. He has authority to stop the work whenever such stoppage may be necessary to insure the proper execution of the contract.
As the architect is in the first instance the interpreter of the conditions of the contract and the judge of its performance, he shall side neither with the owner nor with the contractor, but shall use his powers under the contract to enforce its faithful performance by both.”
* * *”
“Article 24. The owner, without invalidating the contract, may make changes by altering, adding to or deducting from the work, the contract sum being adjusted accordingly. All such work shall be executed under the conditions of the original contract, except any claim for extension of time caused thereby shall be adjusted at the time of ordering such change.
Except as provided in articles 3, 9, and 18, no change shall be made unless in pursuance of a written order from the owner, signed or countersigned by the architect, or a written order from the architect stating that the owner has authorized the change, and no claim for an addition to the contract sum shall be valid unless so ordered.”
“Article 27. If the contractor has made application as above [for payments] the architect shall not later than the date when each payment falls due issue to the contractor a certificate for such amount as he decides to be properly due.
No certificate issued nor payment made to the contractor nor partial or entire use or occupancy of the work by the owner shall be an acceptance of any work or materials not in accordance with this contract. The making and acceptance of the final payment shall constitute a waiver of all claims by the owner otherwise than under articles 16 and 29 of these conditions, or under requirements of the specifications, and of all claims by the contractor except those previously made and still unsettled.”
The specifications provide:
Page 11M. “No change from plans and specifications is to be made without the previous consent of the board...
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