Parr v. Howell.
| Citation | 74 W.Va. 413 |
| Decision Date | 19 May 1914 |
| Docket Number | No. 2102.,2102. |
| Court | West Virginia Supreme Court |
| Parties | Parr v. Howell. |
The certificate of an architect, showing the cost of completion of a building by the owner, on default of the contractor, under a provision in the contract for such completion, making the contractor liable for the excess of the cost thereof over the balance due him, to be valid and conclusive, agreeably to the terms of the contract, must be founded upon a thorough and careful audit of such expense, (p. 416).
A certificate of expense under such a provision has not the dignity and conclusiveness in law of an award of arbitrators and may be impeached or set aside in a legal forum. (p.418).
It is error in the trial of an action for recovery of such expense to exclude evidence tending, in connection with other evidence of failure to make a proper audit thereof, to show inclusion, in the amount certified, of the cost of extras or alterations not contemplated by the contract. (p. 419).
The difference between the amount paid the contractor by the owner, under a building contract before breach thereof and the amount expended in the work by the latter, is not a proper item of set-off against the expense of completion by the owner, when the contract binds the contractor to pay the cost of construction in excess of a stipulated sum. (p. 419).
Efforts of the owner to obtain unauthorized alterations of the work by the contractor's foreman do not constitute a breach of the contract by the owner. (p. 419).
A judgment in favor of the contractor in an action by the owner to recover money advanced and not expended on the work by the contractor does not estop the owner from suing to recover the expense of completing the work, after abandonment by the contractor, the causes of action being wholly different. (p. 419).
Rulings of the trial court, rejecting offence, not mentioned in any way as grounds of the motion for a new trial, nor made subjects of formal bills of exception, will not be considered in the appellate court as grounds for a new trial but, if the verdic is set aside upon other grounds, such rulings v; reviewed for the purposes of the new trial. (p. 419).
(Lynch, Judge, absent.)
Error to Circuit Court, Harrison County. Action by Charles S. Parr against Calvin P. Howell. Judgment for plaintiff, and defendant brings error.
Reversed and remanded.
John W. Davis and Davis Swartz & Templeman, for plaintiff in error.
John Bassel and Millard F. Snider, for defendant in error. fenbarger, judge:
This writ of error requires review of a judgment in favor of an owner against a contractor for the cost of completion of a house, incurred under the provisions of the standard builders contract, recommended, it is said, by the American Institute of Architects and the National Association of Builders. Howell bound himself to furnish the materials and labor for the building and complete it at a cost not exceeding the sum of $18,800.00, including his commission of 6 per cent., guaranteed it not to cost more than $18,800.00, and agreed to pay Parr any excess of cost, in case it should go beyond said sum.
A further provision of the contract authorized the owner, in case of neglect or refusal of the contractor, at any time, to supply sufficient skilled labor or proper materials, or failure to prosecute the work promptly and diligently or to perform any duty imposed upon him by the contract, to terminate his employment and enter upon the premises and take possession, for the purpose of completing the work, of all materials, tools and appliances thereon, after three days notice to the contractor to provide such labor or materials and his neglect, failure fusal to do so. A condition precedent to such notice mi nation was a certificate by the arch-
itect, declar: such refusal or neglect. Failure to proceed after such certificate and notice authorized the owner to complete the building and charge the expense against the balance due the contra if any, and subjected the contractor to liability for any xcess of such expense over the unpaid balance due him by the terms of the contract. In either case, the expense of completion and the damages to the owner were to be audited by the architect and his certificate thereof was to be conclusive upon the parties.
fter having performed half of the work, or more, and received $15,000.00 from the owner on account thereof, the contractor ceased to furnish labor and materials, and the owner invoked the benefit of the clause of the contract just mentioned. The architect certified the fact, the notice was served, and the owner took charge of the work. He claims to have expended, in the completion thereof. $2,328.54 for labor and $4,566.73 for materials, total, $6,895.27, maki.: the entire cost $21,895.27, which exceeds the contract limit by the sum of $3,095.27, and the architect certified the items of expense and total cost in accordance with his claim. The judgment complained of is for the alleged excess of cost and interest thereon from the date of the certificate.
The following grounds of defense were interposed: (1) a set-off of $1,137.10, the amount alleged to have been ex-I pended on work in excess of the $15,000.00 received: (2) j breach of the contract by the owner, justifying non-per-j formance by the contractor; (3) a verbal release of the limita-j tion of cost and of liability for excess thereof; and (4) in-1 validity of the architect's certificate on account of his failure to audit the expense of completion. 1
A rule of practice forbids reversal for any error the court | may have committed in its rulings, in so far as they pertain to the first three grounds of defense. They excluded the evidence offered to establish said defenses and were not. in any way, made grounds of the motion for a new trial, nor were they or any of them, made subjects of formal bills of exception. Exceptions were noted in the general bill of exception, embodying the evidence, but that alone is insufficient. Slate v. Heneghan, and Ireland v. Smith, decided at the present term and not yet reported; State v. Bingham, 42 W.-Va., 234; Halstead v. Eorton, 38 W. Va. 727; Gregory v. B. & O. R. Co.. 37 W. Va.. 606. If a new trial is allowed upon some other ground, however, the propriety of these rulings will be tested and passed upon, as a precaution against error in such trial. Hence, consideration thereof will be postponed until the other assignments of error shall have been * disposed of.
The certificate purporting to give the result of the audit contemplated by the contract, having been introduced, after verification by the testimony of the architect, cross-examination of the architect elicited the facts constituting the basis oi the fourth defense. The certificate was founded upon the bills for labor and materials, paid by the owner, and the personal knowledge of the architect that some of the materials represented by the bills had been used in the building. While he had had something to do with the selection of some of the aterials, he had made no investigation of the subject matter the certificate. On the completion of the building, he had kmined it only far enough to enable him to certify its npletion. He made no inquiry as to whether the cost inlided extras or better materials and workmanship than the...
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