J.H. Sullivan Co. v. Wingerath

• Decision Date: 10 February 1913
• Docket Number: 115.
• Parties: J. H. SULLIVAN CO. v. WINGERATH.
• Court: U.S. Court of Appeals — Second Circuit

203 F. 460

J. H. SULLIVAN CO. v. WINGERATH.

No. 115.

United States Court of Appeals, Second Circuit.

February 10, 1913

The following statement contains the facts particularly relevant to the questions of law considered in the opinion:

The plaintiff-- a general contractor-- had a contract with the owner of a church in Far Rockaway, Long Island, to make improvements upon the premises including the construction of concrete or granolithic sidewalks and curbs. The contract provided that no payment should be made to the contractor by the owner without the approval of the landscape architects and contained different provisions stating that the work should be done in a manner satisfactory to such architects. The plaintiff having taken the general contract from the owners made a subcontract with the defendant for the granolithic work. This contract provided that the work should be performed 'to the satisfaction of the architects Messrs. Olmsted Brothers,' and that final payment should be made when the work should be approved by them. The defendant did the work under the subcontract but it was not satisfactory to the architects who rejected it and compelled the plaintiff to renew and replace it. The plaintiff brought this action to recover the expense it was put to over and above the contract price with the defendant, and the defendant by his counterclaim demanded the unpaid balance of the contract price.

Upon the trial the court, in the first part of its charge, told the jury that it was for them to say from the testimony whether the curb as constructed 'did measure up to what Mr. Olmsted should have reasonably required under those specifications. ' Subsequently, the court charged in the language of the plaintiff's request as follows 'Under this contract the decision of the architects as to whether the work was satisfactorily performed is conclusive unless the jury find that the decision of the architects was based upon fraud or a mistake so gross as to necessarily imply bad faith on the part of the architects. If, after the completion of the work by the defendant, the architects examined it and decided that it was not satisfactorily performed, this decision of the architects is not subject to review by the court or by the jury, unless their decision was based upon fraud or upon a mistake so gross as to necessarily imply bad faith.'

The jury retired after the charge but later came in for further instructions and the court charged in part as follows:

'It really turns on the architects' decision, whether that was justified or not.'

'Fifth Juror: I would like to know if we are indorsing Mr. Wingerath's contract if we

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