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Farley v. Browning, 15 Abb. N. C., 301.

of the defendant. The judge erroneously construed the answer 6 as making an admission that the plaintiff had done all the work, that the written contract that was produced in evidence (though it had not been mentioned in the complaint), required him to do. In consequence of this misconstruction of the pleadings, the judge fell into the error of instructing the jury,“ that the question to be decided is, not whether the work was done or not, but whether a promise was made. If the jury find a promise was made, the plaintiff is entitled to a verdict." In point of fact, the chief question in the case was, has the

7 plaintiff fully performed the work mentioned in the written contract? The plaintiff declares on one of the common counts in assumpsit. This he had a right to do, provided that he had fully completed the special contract. The rule is that indebitatus assumpsit will lie to recover the stipulated price due on a special contract, where the contract has been completely executed, so that only a duty to pay the money remains. It is essential that the plaintiff should prove that the special contract has been performed upon his part (Jewell o. Schroeppel, 4 Cow., 566 ; Farron v. Sherwood, 17 N. Y., 227; Hosley v. Black, 28 N. Y., 438; 8 Hurst v. Litchfield, 39 N. Y., 377; Higgins v. Newton, &c. R. R. Co., 66 N. Y., 605).

The plaintiff undertook to prove performance, and he offered evidence for that purpose. The defendant then offered to prove that the work had never been finished. The court ruled that he could not be allowed to show that the contract had not been performed, but notwithstanding that ruling, the defendant was afterwards permitted to give a good deal of testimony to show that the plaintiff had failed to do the work that the contract had provided for. It might perhaps be said that the action of the court in allowing the defendant to prove that the contract had not been performed, obviated the exception taken to the ruling that such proof could not be admitted, but there is still the exception taken to the instruction to the jury, that it was of no consequence whether the contract had been performed or not. This instruction was, as I have said, erroneous, and because of it, judgment must be reversed.

In his note to Cutter v. Powell (2 Smith's Lead. Cas.), Mr.


Schencke v. Rowell, 3 Abb. N. C., 342.

10 Wallace says, “where there has been a special contract, the whole

of which has been executed on the part of the plaintiff, and the time of payment on the other side is passed, a suit may be brought on the special contract, or a general assumpsit may be maintained ; and in the last case the measure of damages will be the recompense fixed by the special contract. If, however, the special contract be open, and there be no fault or omission on the part of the defendant indebitatus assumpsit will not lie."

The plaintiff cannot free himself from the obligation of proving his case, by changing the form of his pleading. If he sues 11

upon the special contract, he must prove performance, and so he must do, if he resorts to an indebitatus assumpsit.

The judgment should be reversed, and a new trial ordered, with costs to abide the event.

Daly, C. J., and LARREMORE, J., concurred.
Judgment reversed.

NOTE.--In Atkinson v. Collins, 9 Abb. Pr., 353, the complaint alleged services generally, defendant setting up that the work was done under a special contract. It was proven at the trial that a special contract had been entered into, which provided that, when the work was completed and accepted by certain school officers plaintiff was to be paid ; it was also proven that the work had never been accepted by such officers. Held, that the complaint was properly dismissed.



New York Common Pleas, General Term ; June, 1877.

[Reported in 3 Abb. N. C., 342. ] 1. A complaint in an action on a contract in which the determination of a

third person on a question between the contracting parties is a condition precedent-e. g., on a building contract containing the usual requirement of an architect's certificate-is bad on demurrer if it does not allege the making of such determination, or sufficient ground for

dispensing with it. 2. Where a building contract requires the approval of the work by the

architect and his certificate to that effect, the performance of the work and the production of the certificate are both prerequisites to any recovery, unless withheld by “fraud,” or “collusion,” or “in bad faith." A formal approval and acceptance by the architect without a certificate are not enough.

Schencke v. Rowell, 3 Abb. N. C., 3427.

3. The allegation in a complaint that an architect's certificate is “unrea

sonably " withheld by him, is not a sufficient justification for not ob

taining it. 4. Nor is a mere allegation of plaintiff's complete performance or of

defendant's acceptance of the work sued for, enough to dispense with

alleging a certificate. 5. The architect's acceptance of any substitute for that which the contract

called for, if substantially variant from its terms, unless by authority of the employer, is not enough to sustain an action; and even the employer's acceptance of inferior or different work must be supported by some new consideration, as, for example, an agreement to accept such inferior work with deductions for defects agreed upon, in order to be deemed as part or entire performance.


William M. Schencke sued George P. Rowell and Charles N. 1 Kent to recover an alleged balance of $550, on a building contract, whereby the plaintiff was to erect a building on the Centennial grounds, in the city of Philadelphia, for the defendants ; and also to recover $528.41 for extra work and materials furnished about said building.

The amended complaint alleged : “ That on or about February 24, 1876, plaintiff and defendant entered into an agreement of which a copy is hereto annexed, marked “Schedule A,' and hereby made a part of this com- 2 plaint."

“ That the plaintiff duly performed and fulfilled all the conditions and requirements of said agreement, to be by him performed by the terms thereof."

“ That the plaintiff has requested the architect in said agreement mentioned, to give the certificate mentioned in said agreement, but said architect unreasonably neglects and refuses to give the same.” “ That the defendants have duly accepted the work performed

3 by the plaintiff under and by virtue of said agreement, &c., and that they had paid $6,000 on account thereof."

There was also a second cause of action for extra work and materials.

“ Schedule A,” referred to in the complaint, was an agreement for building, in the usual printed form, with special provisions added in writing, and was, under seal. It provided that the

Schencke v. Rowell, 3 Abb. N. C., 3427.

4 plaintiff would“ on or before the first day of May, 1876, well

and sufficiently erect and finish the new building on the Centennial grounds, agreeably to the drawings and specifications made by M. J. Morrill, and signed by the said parties and hereunto annexed, within the time aforesaid, in a good, workmanlike and substantial manner, to the satisfaction and under the direction of the said M. J. Morrill, to be testified by a writing or certificate under the hand of the said M. J. Morrill," for $6,550.

It further provided for payments, as follows, viz.: 1st. When the frame was raised, $800; 2d, when enclosed, $1,500; 3d, 5

when finished, except boxes and painting, $1,700; 4th, when completed and accepted, $2,550.

“Provided, that in each of the said cases, a certificate shall be obtained and signed by the said M. J. Morrill.”

Then followed provisions as to alterations, extra work, etc., not material to the decision.


The defendants demurred to the first cause of action (stated above), on the ground that it did not state facts sufficient to constitute a cause of action.

At Special Term this demurrer was overruled, and judgment ordered for plaintiff, with leave to defendants to amend on terms.

Defendants appealed from this order.
The General Term reversed the order.

ROBINSON, J. In contracts for the performance of work under the supervision of an architect, which, to entitle the contractor to payment for work done, not only require its completion according to the terms of the contract, but also its approval by, and a certificate of, the architect to that effect, the performance of the work and the production of the certificate are both prerequisites to any recovery.

A formal approval and acceptance of the architect “would not relieve the plaintiffs from their agreement to perform the work according to the plans and specifications” (Glacius v. Black, 50 N. Y., 150).

While the architect's certificate is thus made essential and is otherwise indispensable to any right of recovery, its non


Schencke v. Rowell, 3 Abb. N. C., 3427.

production may be excused when withheld by fraud or collusion, 8 or in bad faith (Thomas v. Fleury, 26 N. Y., 26; Barton v. Hermann, 11 Abb. Pr. N. S., 378).

The requirement of such certificate being for the benefit and protection of the employer, he may by some definitive or expressive act, waive the necessity for its production. A mere allegation of his acceptance of the work done has no legal significance. Everything done in the progress of the work contracted for, if known to or recognized by the employer, is to be deemed accepted in part performance; and notwithstanding 9 any such allegation as is made in the present case, “ that the defendants duly accepted the work performed by plaintiff under and by virtue of said agreement,” the complaint presents no suggestion that the entire work as performed was accepted as a full compliance with the requirements of the contract.

Without this, no waiver of an architect's certificate of complete compliance (so far as it gave assurance of the fact) could be deemed to be made.

This action was brought to recover a part ($550) of the last and final payment of $2,550, which was to be made when the 10 whole work was completed and accepted,” and it is true such completion and acceptance is alleged in these precise and general terms, but as to the certificate of the architect as to this final payment that the work had been so completed “in a good, workmanlike, and substantial manner, to his satisfaction and under his direction,” as required by the contract, none such is alleged to have been given.

The certificate of the architect being indispensable to any recovery (so far as material), unless withheld for fraud or

11 collusion or in bad faith, the allegation that it was so withheld “ unreasonably,” has never been accepted as a justification for its non-production. Every principle upon which the architects determination and adjudication in this respect is deemed operative under the contract, rejects any such “unreasonableaction as without the consideration of the parties, or the obligations of their contract. The architect, so far as it commits any matter to his judgment, is accepted as an umpire between them (Smith v. Briggs, 3 Den., 73; Butler v. Tucker, 24 Wend.,


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