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with the architect or others, he is liable to the contractor for any damages occasioned the latter as a result of his conduct. On the other hand, if it appear that the contractor has been guilty of any improper conduct toward, or willful departure from his obligations to, the owner, the latter may recover for the damage caused him by such wrongful acts of the contractor.

It is a well recognized and long established principle that a contract induced by fraud is voidable at the option of the party defrauded.18 If, therefore, some concession or agreement be made. either by the owner or by the contractor as a result of bad faith or of misrepresentation on the part of the other, the transaction may be deemed a nullity by the innocent party. Thus, if the architect waive the requirements of a written construction contract, with the authority and consent of the owner, such waiver will, nevertheless, not be binding on the owner, if the action taken by the architect and the acquiescence therein of the owner be the result of bad faith on the part of the contractor.19

The owner has the right to insist that the workmanship of the contractor be of good character and performed with reasonable skill and care, and if the workmanship be not of such character, but

18 Morrison v. Universal, etc., Co., L. R. 8 Exch. Cases 197; Rowley v. Bigelow, 12 Pick. (Mass.) 307; Byard V. Holmes, 33 N. J. L. 119; Daly v. Wise, 132 N. Y. 306; Cobb

v. Hatfield, 46 N. Y. 533; Baird v. New York, 96 N. Y. 567.

19 Mohawk Overall Co. v. Brown et al., 163 N. Y. A. D. 157.

be such as to justify the conclusion that the contractor has been guilty of bad faith and recklessness and improper methods of construction in the carrying out of his contract, the owner may collect from the contractor, as damages, the amount which it may cost him to effect proper repairs, and to correct the faults of construction resulting from the acts or omissions of the contractor. This will be true even if it be shown that the owner authorized the architect to waive the requirements of the written contract, and consented to a different form of construction from that originally specified. No matter what the form of construction may be the owner has a right to expect that the contractor will perform his work in accordance with the form of construction specified, and in a proper and reasonably careful manner, 20

§ 57. Right to Plans.-It has been already noted that the owner, in the absence of a special agreement between him and the architect, is entitled to the plans which he has ordered and for which he has paid or became obligated to pay. While there is no element of ownership in the rights of the builder in the plans, nevertheless, the fact has been recognized that he has a certain right to use and to hold them in his possession during the progress of the work. The specific case in which this right has been referred to, however, involved the right of the builder to the plans as between himself and the architect and a 20 Mohawk Co. v. Brown et al., 163 N. Y. A. D. 157.

question of criminal conduct and bad faith on the part of the latter.21 It should not be considered, therefore, as at all conclusive in an ordinary case, even as between architect and contractor. All that can be said in regard to this right as between the owner and the builder is that there might, conceivably, be certain circumstances under which the taking of the plans by the owner from the builder would be improper, and certain rights to which the court, under special conditions, would probably hold the builder to be entitled, such as the right to hold the plans as a part and as evidence of the contract between himself and the owner or for purposes of proof of his own proper compliance with the terms of the contract between them.

§ 58. Liability of Contractor for Work of Subcontractor.-A contractor is bound to make good any defects in the work which are the result of improper work by his subcontractor. Under such conditions he will naturally desire to secure reimbursement from the subcontractor if possible.

§ 59. Recoupment from Subcontractor.-An agreement by a subcontractor to perform work under the supervision of an architect, and in accordance with the latter's plans, will be sufficient to sustain a recovery by the general contractor from the subcontractor of any amounts which the former has been compelled to pay by reason of the architect's requiring him to replace work performed by the subcontractor, because the same

21 Lonford v. Diettrich, 87 Ala. 250.

was defective and not in accordance with the plans. The subcontractor, however, cannot be held to account for provisions in the specifications which refer merely to the amount to be paid to the contractor by the owner, and if he prove that he has performed the work which he has agreed to perform, in accordance with the plans and specifications, his right to recover will be sustained.22

§ 60. Time of Payment.-In some instances it may be that the contract specifies no fixed time for payment, as distinguished from the usual contract provisions whereby installment payments at designated times or stages of the work are provided for. Where no fixed time for payment is provided, the contractor is not entitled to payment for the work until the performance thereof has been completed.

§ 61. Substantial Performance.-The doctrine of substantial performance will be again referred to in another connection 23 and the rules, which will be seen to characterize that doctrine, when applied to a proceeding by the builder to foreclose his lien, may, in general, be said to characterize it also when applied to a suit by the builder to recover the amount which he may claim to be due to him under the building contract.

While the doctrine of substantial performance was developed to do away with the injustice which an insistence on an absolutely literal and strict

22 Martin v. Oberle, 85 N. 23 Part III, Liens, p. 163. Y. Misc. 35.

performance of the contract would often work the contractor must, nevertheless, comply with each and every one of the substantially important and necessary elements and provisions of the contract. If he agree to perform certain work according to law, he can not recover for the work even though he has performed it, if it appear that he has not complied with certain material provisions of the law. For the purposes of this rule, a contractor who has failed to comply with the Rules of the Tenement House Department is considered to have failed to comply with the provisions of the law.2

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Just what constitutes, in a given case, substantial performance, will depend upon all the conditions surrounding the work and the terms of the contract in that specific case. What might, for instance, under certain conditions, be sufficient to sustain a conclusion that the contract has been substantially performed, might, under other conditions, be totally inadequate for that purpose.

In a rather recent case a contractor agreed to excavate a cellar 162 feet in length, 102 feet in width, and 8 feet in depth. The cellar which he excavated measured 161 feet in length by 99 feet 8 inches in width and 8 feet in depth. It was held that he had not substantially performed his contract and that he could not recover the balance unpaid thereon and for which he sued.25

24 Bonagur v. Purificato, 146 N. Y. Supp. 1070.

25 Paladino Contracting Co.

v. Walsh et al., 144 N. Y.
Supp. 7.

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