Shepard's Chemical Co. v. O'Brien

• Citation: 92 S.E. 594,173 N.C. 618
• Decision Date: 26 May 1917
• Docket Number: 302.
• Parties: SHEPARD'S CHEMICAL CO. v. O'BRIEN. O'BRIEN v. SHEPARD'S CHEMICAL CO.
• Court: United States State Supreme Court of North Carolina

92 S.E. 594

173 N.C. 618

SHEPARD'S CHEMICAL CO. v. O'BRIEN.

O'BRIEN v. SHEPARD'S CHEMICAL CO.

No. 302.

Supreme Court of North Carolina

May 26, 1917

Appeal from Superior Court, New Hanover County; G. W. Connor, Judge.

Action by the Shepard's Chemical Company against A. D O'Brien, wherein defendant filed a counterclaim. Judgment for defendant, and plaintiff appeals. Affirmed.

Where building contract made final certificate of architect conclusive as to completion according to contract, and there was a dispute whether the building was complete, and a new agreement was made, whereupon the final certificate was given, there was no fraud so as to permit impeachment of such certificate by the building's owner.

From a perusal of the record, it appears that in January, 1914 defendant had entered into a contract to construct for plaintiff company a reinforced concrete building in the city of Wilmington according to certain plans and specifications "said work to be done in good, substantial, workmanlike manner to the satisfaction and under the direction of James F. Gause, Jr., architect," etc.; that at the completion of said building, or soon after it had been turned over to and was occupied by the owner, some differences having theretofore existed between the parties, plaintiff company instituted a suit against defendants in the superior court of New Hanover county, seeking to recover damages in the sum of $2,000 by reason of alleged wrongful delay in completing building and of defective construction, etc. There was denial of liability by defendant and insistence of full performance of contract on his part, and claimed a balance due defendant thereon of $604.50; $401 thereof being for work done within the specifications of the contract, and $203.50 being for extra work done by authority of the architect and for which the owner was bound. Meantime defendant instituted against plaintiff company an action in the recorder's court of the city of Wilmington to recover this balance, and plaintiff answered denying liability and alleging the above-stated breaches of contract on part of defendant, In the latter action, judgment having been entered for plaintiff O'Brien, here defendant, an appeal was taken by the company, and in the superior court the two actions were consolidated and submitted to the jury, who, at the term of court heretofore stated, rendered their verdict as follows:

"(1) Did the architect, James F. Gause, Jr., give to A. D. O'Brien a final certificate July 13, 1914, as required by the contract? Answer: Yes.

(2) If so, was the said certificate obtained by the false and fraudulent representations of the said A. D. O'Brien? Answer: Yes.

(3) Did A. D. O'Brien fail to construct the building in accordance with the contract and specifications as alleged by the Shepard's Chemical Company? Answer: No.

(4) Did the parties enter into a contract by letters that on the performance of certain specific work the Shepard's Chemical Company, Inc., was to pay A. D. O'Brien the balance of the money which he claimed to be due upon the contract, and for extras? Answer: Yes.

(5) If the subsequent agreement was entered into, did A. D. O'Brien comply with the terms of that agreement, and did the architect give a final certificate of April 15, 1915, to that effect? Answer: Yes.

(6) Was this certificate produced by the false and fraudulent representations of the said A. D. O'Brien? Answer: No.

(7) What amount, if anything, is the Shepard's Chemical Company, Inc., entitled to recover from A. D. O'Brien for breach of his contract for delay in construction of the building? Answer: Nothing.

(8) What amount, if anything, is the Shepard's Chemical Company, Inc., entitled to recover from A. D. O'Brien for damages for breach of contract? Answer: Nothing.

(9) What amount, if anything, is A. D. O'Brien entitled to recover from the Shepard's Chemical Company, Inc.? Answer: $401, and interest from August 14, 1914; $203.50, and interest from April 15, 1915."

Judgment on the verdict for defendant, O'Brien, and plaintiff excepted and appealed.

McClammy & Burgwin and Kenan & Wright, all of Wilmington, for appellant.

Rountree & Davis, of Wilmington, for appellee.

HOKE J.

We have carefully considered the case presented in the record, and are of opinion that no reversible error has been made to appear. The agreement, in several places, makes the final certificate of the architect conclusive as to a completion of the building in accordance with the contract; and, this certificate having been fully and formally given, the authorities are that it was not afterwards open to the architect or the builder to withdraw it, nor to question or impeach it as to observable defects or those which were or could have been discovered by the architect in the proper performance of his duties, except in case of fraud or mistake so palpable as to indicate bad faith or gross neglect. McDonald v. Arthur, 154 N.C. 122, 69 S.E. 832; Chicago, etc., R. R. v. Price, 138 U.S. 185, 11 S.Ct. 290, 34 L.Ed. 917; Kihlberg...