for which he has not provided, is not, in itself, any justification for an additional charge by him to cover the extra expense with which he may be burdened under such circumstances. If his contract be explicitly based, in whole or to a material extent, on the estimates of the engineer or architect of the quantity of the material which it will be necessary to use or of the character of the work, and the work necessary, or the quantity of material necessary, prove to be in excess of the amount estimated, or the work prove very materially different in its character from the preliminary description given of it by the architect, the contractor may reasonably claim that if he is to perform the extra work made necessary by such unexpected conditions and by the variances between the actual facts and the representations of the architect, it is but proper that he be reimbursed for the additional expense which such extra work will entail. This claim may be met successfully by the owner if it be shown that it was agreed, or specifically understood by the builder, that the estimates of the architect or engineer were merely approximate and that the contractor was expected to investigate conditions and enter into the contract, not in reliance upon any representations or estimates of the architect or engineer, but as a result of his own investigations and judgment.

If, however, the additional cost of construction, and the unexpected conditions from which it

arises, are the result of some act or omission on the part of the owner, without fault on the part of the builder, the latter may recover for the extra expense to which he may be put in completing the contract under the altered conditions. For instance, if the owner, by neglecting to take proper care of an adjoining piece of property owned by him, were to allow leakage or other conditions which would undermine or deleteriously affect the work being done by the contractor, and the contractor, as a result of such conditions, should be put to additional expense in completing his contract, for shoring or additional excavation work or the like, he might well maintain an action against the owner for such additional expense, even though in the contract itself it had been specifically stated that the estimates of the architect and his representations, in regard to the character of the work, and of the property, were approximate only, and that the contractor had himself investigated conditions and had entered into the contract solely as a result of, and in reliance upon, his own investigations and judgment. The mere fact that the contractor had investigated conditions and had not depended upon the architect's estimates or statements would not, under such circumstances, excuse the owner, for the reason that the contractor, in making his investigation and decision, had the right to assume and believe that the owner would not, by his own neglect or omission in respect to the adjoining property,

create new and unforeseen conditions involving additional expense.*

It should be remembered that there is a distinction between extra work agreed upon or made necessary after the contract has been executed and put in force, and extra work which is provided for under the first preliminary understanding has been reached, but before the contract has actually become effective. In the latter case, the extra work would entail merely a modification of the proposed contract and a change in the character of the work, taking effect before the final acceptance of the contract. Such work should not really be termed extra work at all, in the ordinary sense in which that term is employed in building contracts and relationships, for the reason that the provisions in regard to it have become merged in, and terms of, the contract, as finally agreed upon. For such work no recovery can be had."

The builder as one of the parties to the construction contract, is chargeable with notice of its provisions, and where the contract provides that no alterations are to be made except upon the written order of the architect, evidence offered, in behalf of the builder, that the architect has orally allowed certain changes in material to be made, is not competent as proof of a waiver by the client of the express provisions of the contract. This rule will be applied even in cases where the archi

4 Sundstrom v. The State, 213 N. Y. 68, reversing 159 N. Y. A. D. 241.

Marx v. White Co., 143 N. Y. Supp. 1036.

tect may be an officer of the corporation for which he is acting as architect, and the corporation will not, even under such conditions, be compelled to recognize, as extra work, work done pursuant to the oral permission of the architect when, under the express terms of the written contract, the contractor is chargeable with notice of the fact that the authority of the architect in connection with the construction work is limited to his position as architect. Where it appears that it is necessary that extra work be done which is of such a nature as to vitally affect the whole contract, and a supplemental agreement for the doing of such additional work is entered into accordingly, the term of the original contract will, by implication, be extended by the time which is reasonably necessary for the proper performance of the supplemental agreement and the completion of the additional work thereby provided for."

§ 55. The Architect's Certificate.-If the contract provide, as a condition precedent to the right of the contractor to recover, that he shall receive the certificate of the architect certifying to the proper completion of the work, no recovery by the contractor will ordinarily be allowed where he fails to produce such certificate or to prove that it has been issued by the architect. If, however, the contractor show that the refusal of the architect to issue the certificate has been unreasonable, and

• Traitel Marble Co. V. Brown Bros. Inc., 159 N. Y. A. D. 485.

7 N. Y. State, etc., Bank v. Whitehall Water, etc., Co., 161 N. Y. A. D. 304.

in bad faith, the general rule will not be applied and the contractor will be allowed to recover upon proof of these facts, and of the fact that he has complied with the terms of the contract in all substantial particulars. Similarly, an objection that the certificate has not been issued will be met by proof that the owner has, directly or indirectly, waived this provision of the contract.

8

Excuse or waiver are facts which must be clearly proven, however, to be effective, and if the contract provide that the production of the architect's certificate is to be a condition precedent to recovery by the contractor, no recovery will be allowed where the complaint fails to allege the issuance of the certificate, or an excuse for its non-production, or a waiver of its production,1o and this notwithstanding the fact that there may be evidence that the architect was at the building but seldom, and that prior payments had been made to the contractor during the course of the work without the production by him of the certificates of the architect.11

Where, however, upon the contractor failing to complete, the owner completes the work, the fact

8 MacKnight, etc., Co. v. The Mayor, 160 N. Y. 72; Thomas v. Stewart, 132 N. Y. 580; Flaherty v. Miner, 123 N. Y. 382; Bowery National Bank v. The Mayor, 63 N. Y. 336; People ex rel. Rapid Transit, etc., Co. v. Craven, 210 N. Y. 443; Thomas v. Fleury, 26 N. Y. 26.

Diehl v. Schmalacker, 26 Misc. (N. Y.) 835; Fay v. Muhlker, I Misc. (N. Y.) 321; Uvalde, etc., Paving Co. v. Central, etc., Co., 84 N. J. L. 297; Schmulbach v. Caldwell et al., 215 Fed. Rep. 70.

10 Weeks v. O'Brien, 141 N. Y. 199.

11 Shurman v. George Backer, etc., 144 N. Y. Supp. 9.