Opinion of the Court, by MONELL, Ch. J.

That the total value of the said extra work was the price of two thousand nine hundred and seventy dollars and forty-nine cents, and that no part of said sum has been paid to said O'Brien..

And as matter of law:

That the architect's and clerk's certificates and arbitration did not apply to the extra work mentioned in the foregoing finding.

That the provisions in the contract as to extra work were provisions in favor of Eisner, and might be waived by him by parol at any time, and that the actions and directions of Eisner, as to said additional or extra work and materials, constituted a perfect waiver of all said provisions.

The defendant Eisner duly excepted.

The referee refused to find, that a portion of the work allowed for in the report was work done under the contract between O'Brien and Eisner, or that there was no waiver of the contract on the part of Eisner.

But he did find, that at the time of the commencement of the action there were prior liens upon the premises for work or materials upon said building which were valid and subsisting liens; and that no certificate from the county clerk that there were no liens, was procured by O'Brien, before the commencement of the action.

The defendant Eisner also excepted to the refusals of the referee.

J. M. Smith, for appellant.

F. H. Man, for respondents.

BY THE COURT.-MONELL, Ch. J.-Without examining at any length the other questions discussed by the appellant's counsel, the decision of the referee may be sustained, if his finding of fact that the work

Opinion of the Court, by MONELL, Ch. J.

in question was extra or additional work, and that the provisions in the contract in respect to it was waived, is supported by the evidence.

It is quite clear that the provisions in regard to the architect's and clerk's certificates, relate only to the payments to be made upon the contract as therein specified, and have no relation whatever to any extra or additional work, outside of the contract, which might be ordered by the owner. For the protection and satisfaction of the owner, he had a right to insist that his contractor, as a condition precedent to payment, should procure the certificate of the architect, that the work had been done in conformity with the contract and specifications; and also the certificate of the county clerk, that there were no liens upon the premises under the contract. But the parties did not, in terms, require any such certificates in respect to any extra or additional work that might be done; and such certificates would, probably, be wholly inapplicable to that class of work. Nevertheless, the owner might have made it a part of his contract that, as a condition precedent to payment for extra work, similar certificates should be furnished. But he did not do so, and merely required that the order for extra work should be in writing.

The referee was correct in his conclusion of law, that any or all of these provisions could be waived by parol. The parties were not bound absolutely, and a party may always surrender the benefit or advantage of a provision in his favor, if it is voluntarily done, and there is neither mistake nor frand. So parties may, by a new and independent agreement, contract for work or materials, other or different from such as is specified in their contract, and, ordinarily, such extra work will not be affected by the covenants or stipulations in the contract. It, of course, can be made to be subject to such covenants, by an express agreement to that effect, but the obligation can not be implied.

Opinion of the Court, by MoNELL, Ch. J.

The referee has found that the work which was the subject of the lien was extra or additional work; that. the owner did not tender or offer to make a written order for it, but that it was done by his direction and consent, and under his supervision; and that he did not demand an arbitration in respect to the value of it.

Those findings, if correct, are conclusive of the right of the lienors to recover.

The right of the owner to give a written order for the extra or additional work, and to insist at all times, that without it he should not be liable, was a provision in his favor. The builder had no interest in or right over it, and it is doubtful if he could have insisted upon it. But being wholly within the power of the owner, he could, and as the referee has found, did waive it; and therefore he can not now insist that the extra or additional work was not ordered in the manner prescribed by the contract.

The provision in the contract in respect to the mode of ascertaining the value of any extra or additional work, was for the benefit of both parties, and either could, probably, have insisted upon resorting to it, to settle these differences. But the referee has found, and it is not disputed, that neither party demanded the arbitration, so that neither can now claim any advantage of objection from it.

The evidence before the referee upon the several questions, of the character of the work, the manner in which it was ordered, and the waiver under the contract which upon his finding justify his judgment, was contradictory and disputed. On the one, side the testimony of the contractor supported and corroborated by two witnesses; and upon the other side, the testimony of the appellant Eisner, also supported and corroborated by two witnesses. There was a direct antagonism in their evidence, and which the referee would believe.

it became a question He had the witnesses

Opinion of the Court, by MONELL, Ch. J.

before him, he saw them and heard them testify, and had such other opportunities as the trial afforded, of judging of the credit which should be given to the one or the other. And being satisfied in his own judgment, he accepted the evidence of the contracts and discredited that of the owner.

It is very clear that a judge would not have been authorized to have taken the case from a jury, if it had been before one, and it follows, as equally clear, that their verdict could not properly have been disturbed.

And the same effect must be given to the findings of a referee upon conflicting evidence, and especially is this so, when the contradictions are irreconcilable, and one side or the other must be discredited.

A referee is better able to decide upon the credit of witnesses, than a court sitting in banc can be; and it is for that reason, that upon appeal his findings of fact, like the verdict of a jury, will not be disturbed, except it be unsupported by, or very clearly against, the weight of the evidence.

But I am not aware of any case where its determination rested solely upon the credit of witnesses, that the appellate court has interfered with the result.

The judgment should be affirmed with costs.

FREEDMAN, J., concurred.

Statement of the case.

SETH W. HALE, PLAINTIFF AND APPELLANT, v. THE OMAHA NATIONAL BANK, DEFENDANT AND RESPONDENT.

I.

II.

ACTIONS-DISTINCTIONS BETWEEN NOT ABOLISHED. 1. TRESPASS, TROVER, AND SPECIAL ACTIONS ON THE CASE. 1. There are intrinsic differences between special actions on the case, and trespass or trover which are not abolished by the code.

CHATTEL MORTGAGES.

1. TRESPASS OR TROVER AGAINST MORTGAGEE.

III.

1. Where a mortgagee, whose right to possession has become perfected under the mortgage, obtains possession in a lawful manner, and sells the property generally without taking any notice of a prior lien or mortgage, he is not liable in trespass or trover at the suit of the mortgagor or the prior lienee or mortgagee.

EQUITABLE LIEN.

1. WHEN IT DOES NOT EXIST.

a. Lessor or lessee.

1. Where the lease, for the purpose of giving a security for the rent, contains this clause, "A lien shall be given by the said lessee to the said lessor to secure the payment thereof " (that is of the rent)" on all the furniture that shall be placed in said hotel by said lessee," an equitable lien is not raised.

2. Bona fide subsequent incumbrancer.

IV.

a. Takes free of an equitable lien.

1. Who is bona fide.

a. One who, without notice of the lien, takes a mortgage to secure a prior indebtedness due him by the mortgagor, and by the mortgage extends the time of payment, is a bona fide incumbrancer for value.

INSTRUMENTS-CONSTRUCTION OF.

1. SUBJECT CLAUSE, EFFECT of.

1. Where, by the subject clause, property is transferred, subject only to certain specified liens,

there is a strong inference

that all other liens which may be held by the transferor

⚫ are waived.