that the contract contains a provision that payments shall be made only upon the certificate of the architect will not prevent the contractor, under such circumstances, from recovering on quantum meruit the difference, if any, which there may be between the contract price and the cost of completion. Under such circumstances, the production of the architect's certificate is neither necessary nor material to support the recovery. 12 In further limitation of the ordinary rule requiring that the certificate of the architect must be secured, it should be noted, that in the event that the refusal or failure of the architect or engineer to give such certificate is a result of an error of law on his part in construing the terms of the contract, the contractor is not barred by his inability to produce the certificate and may recover for the work which he has done, if the same has been in other respects satisfactory and in accordance with the terms of the contract.13 Just as the refusal to give the certificate may not be necessarily fatal to the recovery of the contractor, so the fact that a final certificate has been given is not invariably conclusive evidence of the amount due from owner to contractor. In the event, for instance, that there has been a guarantee by the contractor that the completed structure will have a certain capacity or effectiveness in the use to which it is to be put, and it prove that 12 Borup v. Von Kokeritz, 162 N. Y. A. D. 394. 18 Merrill-Ruckgaber Co. v. New York, 160 N. Y. A. D. 513. it is deficient in such respects, the owner, in a suit by the contractor for the unpaid balance of the contract, may properly counterclaim for a breach of such warranty. Evidence of such breach is admissible under these circumstances for the reason that such a warranty survives the completion and acceptance of the contract, and the mere fact that the contract has been completed in accordance with its terms, and the building erected in accordance with the plans agreed upon, is no answer to a claim that in addition to this contract there was a warranty that the building, when completed in accordance with the plans and contract, should be available and efficient for the purposes intended, and that it is deficient in these particulars. The combination of a provision for arbitration with a provision for the giving of certificates by the architect or engineer, may operate to relieve the contractor somewhat of the strict requirements of the ordinary certificate provision. So, if it be provided both that claims of the contractor shall be approved and passed by the engineer or architect, and that, in the event that the same are not so passed, they shall be determined by arbitration, the contractor, upon the failure of the architect to issue the certificate, will still have open to him the right to have his claim determined by arbitration. At the same time, in a contract so phrased, the contractor may not invoke the rule that a recovery may be enforced where the refusal to certify is improper, without first referring the matters in dispute to arbitration in accordance with the arbitration provisions of the contract." The courts are inclined to give more than ordinary weight to the opinions and testimony of architects regarding the character and conditions of the work, not only on account of their special professional knowledge on these points, but on account also of the somewhat quasi-judicial position which they occupy in superintending the performance of a construction contract. Where, for example, the contractor sues in quantum meruit, and testifies that the owner has prevented performance of the contract by failing to pay an installment due under the contract and has based his refusal solely on the ground that the superintendent of the works has failed to recommend payment, such refusal in itself not giving to the owner, under the contract, the right to refuse payment, and the architect denies the contractor's contention and testifies that the only reason the certificate has not been given is that the work is defective, the evidence is insufficient to show that the owner prevented performance. 15 Provisions relative to the certificate of the architect are not enforced solely for the benefit of the owner, but may be enforced for the protection of the contractor as well. If, for instance, the contract provide that upon the architect certifying to the default of the contractor, the owner 14 People ex rel. Rapid Transit Co. v. Craven, 210 N. Y. 443. 15 Borup v. Von Kokeritz, 162 N. Y. A. D. 394. may terminate the contract and complete the work, and that he may, for this purpose, take possession of the tools and materials on the premises, the giving of the architect's certificate is, under such circumstances, a condition precedent to the right of the owner to take possession of the tools and materials and he will not be allowed to assert any right of possession to them until the certificate is given. Speaking generally, it is in actions by the builder against the owner, to recover the contract price, that the questions involving the acceptance of the work and the issuance of certificates by the architect arise. An examination of the decisions in such actions will indicate what important factors these questions have proved to be in the cases wherein they have been present, and how generally and in how many different jurisdictions they have arisen.16 16 Heidlinger V. Onward Const. Co., 44 Misc. (N. Y.) 555, 90 N. Y. Supp. (124 N. Y. St. Rep.) 115; Olsen V. Schwarzwelder, 109 N. Y. App. Div. 282, 95 N. Y. Supp. 651; Traitel v. Oussani, 51 Misc. (N. Y.) 667, 135 N. Y. St. Rep. (101 N. Y. Supp.), 105, White v. Abbott, 188 Mass. 99, 74 N. E. 305; Hebert v. Dewey, 191 Mass. 403, 77 N. E. 822; Loftus v. Jorjorian, 194 Mass. 165, 80 N. E. 235. Bush v. Jones (C. C. A.), 144 Fed. 942; Stephens v. Essex County Park Commission (C. C. A.), 143 Fed. 844. Wyman V. Hooker, 2 Cal. App. 36, 83 § 56. Damages. The contractor is in duty bound to see that the work performed by him for the owner is performed in a proper and workmanlike manner, and if this is not the case and reasonable care is not employed and damage to the owner results, the latter may look directly to the contractor for compensation.17 While the relationship of owner and contractor is not characterized by the elements of special trust and confidence to the same extent as is the relationship of owner and architect, and while the duties of the contractor to the owner, and of the owner to the contractor, are limited and prescribed almost entirely by the more strictly legal obligations of the one to the other, as set forth in the contract between them, and without those other and implied elements of special obligation and trust which characterize a professional, as distinguished from a business, relationship, nevertheless, the owner and the contractor must deal with one another in absolute and entire good faith. If the owner depart from his duties in this respect and conspire against the contractor, either 1117. Halsey V. Waukesha Springs Sanitarium Co., 125 Wis. 311, 104 N. W. 94; Modern Steel Structure Co. v. English Const. Co., 129 Wis. 31, 108 N. W. 70. Robins v. Goddard (1905), 1 K. B. 294. 17 Mohawk, etc., Co. V. Brown, 163 N. Y. A. D. 157; David v. McDonald, 8 L. C. (Lower Canada) Jurist, 44; 14 L. C. Rep. 31; and see Newman v. Fowler, 37 N. J. L. 89; compare also Cass County v. Gibson, 107 Fed. 363, to effect that an offer by the builder in good faith to correct defects will entitle him to recover. As to what acceptance will constitute a waiver, see Smith v. Brady, 17 N. Y. 173; Estep et al v. Fenton et al, 66 Ill. 467; Korf v. Lull, 70 Ill. 420. |