§ 92. Substantial Performance SufficientStatement of the Rule.-That performance of the contract which is considered as necessary under this rule has been construed, as between the owner and the principal contractor at least, to be a substantial performance, and if the contract has been substantially performed, within the meaning of that term as interpreted by the courts, a lien may be enforced.13

The rule has been well stated to be that

"If there has been no wilful departure from the terms of the contract, or omission in essential parts, and the laborer has honestly and faithfully performed the contract in all its material and substantial features, he will not be held to have forfeited his right to remuneration by reason of mere technical, inadvertent and unimportant omissions or defects. The law imposes no such liability upon and exacts no such penalties of the mechanic." 14

Misc. N. Y. 640; Mahon v. Guilfoyle, 18 N. Y. Supp. 93; Smith v. Ruggiero, 52 A. D. (N. Y.) 382; Trust Co. v. Guigues, 76 N. J. Eq. 495; Smith v. Coe, 2 Hilt (N. Y.) 365, affirmed 29 N. Y. 666; May v. Menton, 18 Misc. (N. Y.) 737; Derr v. Kearney, 46 Misc. (N. Y.) 148; Rochford v. Rochford, 192 Mass. 231; Pritzlaff, etc., Co. v. Berghoefer, 103 Wis. 359; Bohem v. Seabury, 141 Pa. St. 594; Morrison Co. v. Williams, 200 Mass. 406; Burke v. Coyne, 188 Mass. 401; Frohlich v. Klein, 160 Mich. 142; Kane v. Stone Co., 39 Ohio St. 1; Malbon v. Birney, II Wis. 107; Brydon v. Lutes, 9 Manitoba 463.

13 Ruigle V. Wallis Iron Works, 149 N. Y. 439; D. A. Tompkins Co. v. Monticello, etc., Co., 137 Fed. 625; Brandt v. City of New York, 110 N. Y. A. D. 396, affirmed 186 N. Y. 599; Felgenhauer v. Haas, 123 A. D. (N. Y.) 75; Nesbit v. Braker, 104 A. D. (N. Y.) 393; Sinclair v. Tallmadge, 35 Barb. (N. Y.) 602; Moore v. Dugan, 179 Mass. 153; Bergfors v. Caron, 190 Mass. 168; Burke V. Coyne, 188 Mass. 401; Sherry v. Madler, 123 Wis. 621; Kane v. Stone Co., 39 Ohio St. I.

14 Allen J. in Sinclair v. Tallmadge, 35 Barb. (N. Y.) 602, at p. 604. See also on interpretation of substantial perform

893. Effect of Delay.-A delay by the contractor in carrying out the contract will not prevent him from enforcing his lien rights where the contract has been carried out, although late; but damages for the delay will be deducted from the contract price.15

894. Limitation of Rule.-The foregoing rule is subject to the qualification that where time is stipulated to be of the essence of the contract, that is to say, a fundamental term of the contract, a breach by the contractor of this fundamental provision, by tardiness in the completion of the work, will prevent him enforcing his rights as a lienor.16

$95. Necessity of Architect's Approval.Where it is provided, as is so usually done, that the work of the contractor must be approved in due course by the architect, and that the certificate of the architect must be presented as a condition precedent to payment, the contractor can enforce no lien without either the presentation of the required certificate, or proof of a proper excuse for not presenting it." Where the plaintiff does not produce the certificate specified and relies upon proof that the certificate has been demanded and

ance, Glacius v. Black, 50 N. Y. 145; Otis Elevator Co. v. Dusenbury, 47 Misc. (N. Y.) 450; Holl v. Long, 34 Misc. (N. Y.) 1; Wollreich v. Fettretch, 4 N. Y. Supp. 326.

15 Benner v. Schmidt, 44 Ill. App. 304.

16 D. A. Tompkins Co. v.

Monticello Co., 137 Fed. 625. 17 Thomson-Starrett Co. v. Brooklyn Hts. Realty Co., III N. Y. A. D. 358; Nesbit v. Braker, 104 N. Y. A. D. 393; Highton v. Dessau, 139 N. Y. 607, affirming 19 N. Y. Sup. 395; Bloominton Hotel Co. v. Garthwait, 227 Ill. 613.

its delivery by the architect refused, the burden of proof is upon the plaintiff to establish these facts by a preponderance of evidence in his favor and to establish in the same way, and as part of his case, the fact that the certificate was unreasonably withheld. 18

It should be noted, also, that in New York it has been held, where the production of the architect's certificate is made a condition precedent to the right of payment, not only that there can be no recovery unless the certificate be produced, or a good and sufficient excuse shown for its non-production, but, in addition, that no payment can be enforced under these circumstances unless there be an allegation in the complaint that the certificate has been secured, or facts set forth showing that it has been unreasonably withheld, and unless the pleading be sustained by proof upon the trial.19

§ 96. Municipal Contract-Approval by City Department as Condition Precedent.-In the case of a municipal contract where it is stipulated that the certificate of approval of a department of the city is a condition precedent to final payment, and the claim is made that the certificate has been unreasonably withheld or refused, whether or not such withholding or refusal has been unreasonable or arbitrary is a question of fact, and should be left to the jury for determination.20 In this connection it is perhaps interesting to note that

18 Nesbit v. Braker, 104 N. Y. A. D. 393.

19 Weeks v. O'Brien, 141 N. Y. 199; L'Hommedieu v. Win

throp, 59 A. D. (N. Y.) 192. 20 N. Y. & N. H. Automatic Sprinkler Co. v. Andrews, 173 N. Y. 25.

Section 421 of the Greater New York Charter provides among other things that:

"It shall be the duty of any borough president, or head of any department, having in charge any work, within five days after the acceptance of such work, to file with the comptroller a final certificate of the completion and acceptance thereof, signed by the chief engineer or head of his department. The filing of such certificate shall be presumptive evidence that such work has been completed according to contract."

§ 97. Collusion-Effect.-Where the withholding of the certificate is the result of collusion between the architect and the owner, the lien will be enforced.21

898. Waiver of Condition by Owner.-Inasmuch as the production of the certificate is a condition specified for the protection of the owner, the latter may waive the condition if he choose to do so.22

§ 99. Certificate as Evidence of Performance. -The certificate of the architect will support the lien claim where the contract specifies that the certificate shall be conclusive evidence of performance, but this rule is subject to the qualification that it is operative only in cases where the certificate is not only produced but is unimpeached. If it be provided, for instance, that the work to be done and materials to be furnished shall be of a

21 McDonald v. Patterson & Co., 186 Ill. 381, affirming 84 Ill. Apps. 326.

22 Hartley v. Murtha, 5 N. Y. A. D. 408.

certain character and quality, and subject to acceptance or rejection by the architect, his acceptance will not in itself be sufficient to support the lien claim, where it is shown that the work and materials are not of such character and quality as to comply substantially with the provisions of the

contract.

§ 100. Corporations as Lienors.-The mere fact that the contractor claiming the lien is a corporation, will ordinarily under the lien statutes make no difference, for the word "person" commonly and widely used in the statutes in describing those who are entitled to liens, has been construed by the courts, in the absence of other restrictive language, to include a corporation.23 The New York courts have held further that where a foreign corporation delivers material which is used in work in New York a lien may be maintained by the corporation notwithstanding its foreign origin.24

§ 101. Effect of Fire.-In the event of the destruction of a building by fire where it has been provided that payment shall be made upon completion and where the contract is not separable, but refers to the work as a whole, a lien may be maintained, provided the contract contain a provision

28 Gaskell v. Beard, 58 Hun. (N. Y.) 101; Loudon v. Coleman, 59 Ga. 653.

24 N. Y., etc., Terra Cotta Co. v. Williams, 102 N. Y. A. D. I; and to same effect see Cook

v. Rome Brick Co., 98 Ala. 409; Fagan v. Boyle, etc., Co., 65 Texas 324; Huttig Bros., etc., Co. v. Denny Hotel Co., 6 Wash. 122.