a contract which is wholly void, because it is not properly consummated, or because it contemplates the doing of an illegal act, and a contract which in itself is perfectly lawful, but is not performed in a lawful manner. The latter contract will not be declared illegal as a whole so as to prevent a recovery under it.16 The mere carrying out of a contract in an illegal way does not make the contract itself illegal," and even where the contract contains certain provisions which are not in accordance with statute or ordinance, it seems that its validity may possibly in some cases, and especially where nothing illegal was intended, be sustained. 18 The requirement that the contract shall not usurp the jurisdiction of the courts is referred to elsewhere.19 16 Fox v. Rogers, 171 Mass. 546. 99. 17 Barry v. Cape, 151 Mass. V. 18 Favor v. Philbrick, 7 New Hampshire 326; Waugh Morris, L. R., 8 Q. B. 202. 19 See § 71, p. 130. CHAPTER III TERMS AND OPERATION OF BUILDING CONTRACT § 65. The Architect as Arbitrator.-One of the provisions of the ordinary contract which may be extremely helpful, if properly drawn and understood, and at the same time is perhaps as likely to cause difficulty as any other, is the provision dealing with the finality of the decision of the architect and with his position as arbitrator. A provision that the decision of the architect, in regard to the construction and meaning of the drawings and specifications, shall be final is proper, and is recognized as entirely valid by the courts. Indeed, a provision in much fuller form and covering many points which the provision referred to would not cover, such as a provision that the certificates, determinations and decisions of the architect shall be final and conclusive, has been recognized as valid, both by the Federal courts, by the courts of New York and by the courts of other States and of other countries.1 1 Ripley v. United States, Handy v. Bliss, 204 Mass. 223 U. S. 695; Conners v. United States, 130 Federal 609; Farrell v. Levy, 139 (N. Y.) A. D. 790; N. Y. Building Co. v. Springfield, etc., Co., 56 A. D. (N. Y.) 294; Sweet v. Morrison, 116 N. Y. 19; 513; Brown v. Decker, 142 Pa. State 640; O'Brien v. Reg., 4 Can. Supreme Court 529; Courtney v. Provincial Commission, 41 Nova Scotia 71. § 66. Limitation of Rule.-In restriction of the general rule as stated it should be noted that its application is dependent upon the absence of fraud,2 or mistake,3 in the transaction. A provision that the architect is to decide the true construction and meaning of the drawings and specifications, does not apply, the New York courts have held, to disputes regarding the construction of the contract. In a case where the question related to the necessity of the contractor filling in between iron beams on the basement floor with terra cotta blocks, under the provisions of the contract between him and the main contractor, it was held that this had nothing to do with the drawings and specifications, and that the decision of the architect relative thereto was, therefore, not controlling.* Another example of the comparatively strict construction which the courts have placed, in some instances, upon the provisions vesting the architect with large powers of decision or arbitration, is the holding of the British courts that, even where it is provided that any question arising between owner and contractor, or relating in any way to the contract, or involving the determination of a dispute between any of the contractors in regard to the building, shall be deter 2 Ripley v. U. S., 223 U. S. 695; N. Y. Building Co. v. Springfield Co., 56 A. D. (N. Y.) 294, supra. 3 Farrell v. Levy, 139 A. D. (N. Y.) 790; N. Y. Building Co. v. Springfield Co., 56 A. D. (N. Y.) 294, supra. * Isaacs v. Dawson, 70 A. D. (N. Y.) 232—judg. aff'd 174 N. Y. 537. mined by the architect, whose decision shall be absolute and final, yet, the differences between the contractor and his employees, as to extras, will not be covered by such a provision, and the provision will be applied only to disputes in regard to the manner of carrying on the different departments of the work." While the courts have applied the restrictions noted, in the application of the general doctrine, it is still true that they have, with substantial unanimity, recognized the validity of provisions vesting the architect with many different and broad authorities in his character of supervisor of the works and of arbitrator of disputes arising in connection therewith. Thus they have sustained and enforced the provisions so common in the building contracts and general conditions in use at the present day, providing that to the architect may properly be left the determination of any matters of differences, whether relating to the quantity, quality or value of the work done;" or to payments; or to the securing of certificates preliminary to the payment of moneys due; or to performance; or to the measurement of the work; 10 or to loss or expense or 8 Pashby v. Mayor, etc., of 7 Elliott v. Missouri, etc., Co., 74 Federal 707; Chicago, etc., Co. v. Price, 138 U. S. 185. 8 Wilcox v. Stephenson, 30 Fla. 377; Mitchell v. Kava 9 nagh, 38 Iowa 286; Oldershaw v. Garner, 38 V. C. Q. B. 37. • Wilcox v. Stephenson, 30 Florida 377; Schliess v. Grand Rapids, 131 Michigan 52. 10 McMahon v. N. Y. Co., 20 N. Y. 463. damage occasioned the owner by reason of a fault of the builder.11 Under certain conditions this general rule may not apply. For instance, the provision requiring that the certificate of the architect must be secured before payment can be successfully demanded, will not be enforced where the death of the architect has intervened; 12 and the provision making the architect the arbitrator of the amount or value of the work performed, or of the correctness of its performance, will not prevent the question of substantial performance being raised,13 or prevent the owner from refusing payment on the ground that substantial performance has not been had.1 14 § 67. Extras.-The importance of any contract provisions in regard to extras has been already referred to. It should be noted here, however, that the ordinary contract provision requiring that extra work be authorized in writing, is of more than ordinary importance in the present connection. It is especially advisable on account of the disputes that may arise in connection with this provision, that it be so phrased as to preclude any misunderstandings or difficulty, so far as this can possibly be done. The Connecticut courts have recognized as valid and have enforced the following form of proviso: "The contractor shall make 99. 11 White v. Abbott, 188 Mass. 12 Pleasant College v. Colett, 142 Kentucky 342. 18 Schliess v. Grand Rapids, 131 Michigan 52. 14 Oberlies v. Bullinger, 75 Hun. (N. Y.) 248. |