Plumbing Co. v. Care,

• Decision Date: 28 November 1903
• Citation: 54 W.Va. 272
• Court: West Virginia Supreme Court
• Parties: Plumbing Co. v. Care,

54 W.Va. 272

Plumbing Co.

v.Care,

Supreme Court of Appeals of West Virginia.

Submitted June 4, 1903

Decided November 28, 1903.

Contract.

A contract for putting in the plumbing and heating works of a house provides for partial payments for the work, and provides that "the final payment shall be made when the work is completed satisfactory to owner and architect." This gives the owner or architect absolute right of rejection of the work for defect or incompleteness, and his reasons for rejection can not be ignored, if in good faith and not fraudulent, (p. 273).

Appeal from Circuit Court, Marion County.

Action by the Fairmont Plumbing Co. against Lydia E. Carr. Decree for plaintiff for less than the amount claimed, and. it appeals.

Affirmed.

C. H. Leeds, for appellant. W. S. Raymond, for appellee.

Brannon, Judge:

The Fairmont Plumbing Company and L. E. Carr entered into a written contract by which said company contracted to construct and complete a plumbing system and hot water heating plant in a certain house belonging to said Carr in Fairmont for a certain price. Said Carr paid part of the sums agreed, but refused to pay the balance claimed by the company because of ailed ged failure of the company to complete the work according to the contract, and the company filed a mechanics lien and brought a chancery suit to enforce it for the balance claimed under the contract and for some extra work. A decree allowed the company $32.87 for some "extra," but denied relief for the balance of extras and denied any relief for the b; lance claimed for work under the contract, without prejudice to another suit, and the company appeals.

I will not argue the case upon the volume of depositions of conflicting evidence. As in other cases several times stated the design in requiring of this Ccoirt written opinions is not to detail evidence going to establish facts, but to state ultimate facts, so far as necessary to make intelligible the principles of law ruling the case. The judge of the circuit court found that the execution of the contract was delayed to the damage of the defendant, and also that the work was never completed as demanded by the contract, and its execution defective. We cannot upon conflicting evidence reverse this finding. I regard the finding correct. But if this were not so, there is a legal principle which would affirm the decree. The contract provides for partial payments during the execution of the work, and then says, "The final payment shall be made when the work is completed satisfactory to owner and architect."

The owner and architect condemned the work as incomplete and defective and complained of delay; they both expressed dissatisfaction with it repeatedly; the architect refused to give an order for final payment; and both owner and architect, under oath as witnesses, continue to express dfssastif action and say that the work was delayed to the loss of the defendant, ill-executed and incomplete. It does not appear that this dissatisfaction of owner and architect was fraudulent or collusive, but I think well grounded. Under the clause of the contract just stated, upon authorities given in Barrett v. Coal Company, 51 W. Va. 410, the decision of the circuit court must stand.

Decree affirmed.

on rehearing.

A petition for rehearing calls for an extension of the above opinion. That the principle stated in it is sound as regards sale or manufacture of chattel articles, as machines, clothing, portriats and the like, is not contested; but it is said the clause of the contract, "the final payment shall be made when the work is completed satisfactory to owner and architect," cannot apply to construction of a building or fixtures therein. It is said that mere chattels can be kept by the seller or manufacturer, or returned, whereas in the other case, the owner of the house gets the work without pay. It is a sufficient answer to say, there is the contract; the parties have made it themselves applicable to the construction of these fixtures. The court cannot disapply it to this subject when the parties have by their own act applied it. Those words are in this very contract. Can a court strike them out? Can a court take from Mrs. Carr a sedate clause made for the purpose of protecting her from an imposition very common, bad construction? Is it a hard case? It may be; but the builder, to get the contract, M;ook the risk of saying "Give me the contract and I will execute it to the satisfaction of yourself and the architect." This clause means something. It means more than the law would say, if it were not in the contract. Then whether the work was completed according to the contract would be a question for the decision of the law; but this contract leaves it to the owner and architect.

Now to the authorities. Whilst some what variant, the weight of them supports this view. In 6 Cyc. 88 we find it stated that it has been held by eminent courts that in special building contracts the builder cannot recover anything, unless he has performed the work according to contract; but that the later rule is not to allow the owner to keep the work and not pay anything, but recovery of the real worth of the work done may be had by showing substantial performance; but this is added: "The doctrine, however, of 'substantial performance' does not apply when the omissions or departures from the contract are intentional, or so substantial as not to be capable of remedy, so that an allowance out of the price would not give the owner what he contracted for, or where the contract must be performed to the satisfaction of the owner or architect," Note, that the last clause makes such a contract as we have in hand an exception from the rule of "substantial performance." Why? Because so the parties wrote their contract, and courts cannot make a new or different one. This contract is in this respect not different from those where payment is to be made upon the certificate of an architect, engineer or other person that the work has been done according to contract, unless this contract is stronger in favor of the owner of the building-, as perhaps it is, since it leaves it to the mere satisfaction of the owner and architect. In Wharton on Contracts, section 594 we find this: "Building contracts often contain the provision that the owner shall not be liable to the builder until the work has been approved by the architect employed; and this provision, when the builder takes the work subject to it, and when the; architect acts as an independent arbiter between the parties, will be strictly enforced. The owner has no right to complain, since the architect was selected by him, and charged by him with this very power; tie builder has no right to complain, since he took the work on this very condition. No matter how arbitrary may be the action cf the architect in refusing to give the certificate required by the contract, yet, if he persist in his refusal, the builder cannot recover on the contract price. It is otherwise when the architect in collusion with the owner refuses to give the certificate, in which case the owner and the architect may together be liable in an action for conspiracy, or the owner may be made liable on the contract being estopped by his own fraud from setting up the refusal of the architect to certify." In Clark on Contracts 66 we find: "Again a promise may depend upon the act of the promissor or of some third person. For instance, it may be made a condition precedent to one party's liability under the contract that he shall approve of, or be satisfied with the other party's performance; and in such a case, by the weight of authority, he cannot be compelled to accept the other party's performance, and perform his part, unless he is satisfied. Examples of such a condition occur in contracts for the manufacture and sale of goods, or for services, where the buyer's or master's liability to pay is made to depend on his being satisfied with the goods or the services. Other examples are in the case of promises to pay for the construction of a building or of a railroad, or for any other construction work, conditional upon the approval and certificate of the architect, engineer, or other third person. In such cases payment cannot be enforced without such approval unless there is fraud, or such gross mistake as to necessarily imply bad faith." Ilammon on Contracts, section 466 says; "Conditions precedent may be regarded as vital or suspensory. A vital condition precedent is one whose non-performance discharges the contract. A suspensory condition precedent is illustrated where a promise is made to depend upon the act of a third person, as in the case of a promise in a building contract to pay for the work upon receiving a certificate of approval from the architect/ * * 'In all these cases/ says Sir William Anson, It would appear that an action brought before the fulfillment of the condition would be brought prematurely; and though neither the non-fulfillment of the condition, nor the action brought before it was fulfilled, would discharge the contract, the condition suspends, according to its terms, the right to the performance of the promise.' "

Chitty on Contracts, 833 says: "If a railway company agree to pay a certain price for work, which is to be done to the satisfaction of their engineer; or if a building agreement contain the usual clause that the party will pay upon receiving the architect's certificate that the work has been done to his satisfaction the fact of the work having been done to his satisfaction in the one case and the obtaining a proper certificate in the other, is a condition precedent to the right to receive payment." Addison on Contracts 576, and Beach on Contracts section 105 are to same effect. Such is the law as the text writers construe the cases. Turn to some authortativc cases. Sweeney v. United States, 109 U. S. 618. A man contracted with the government to build a wall around a cemetery, the contract saying...