Fay v. Moore

104 A. 686 (1918)

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Nature of the Case

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Facts

P and D entered into a contract to erect a building wherein payments were to be made only upon the certificate of the architect. Also, any changes from specifications must be approved in writing by the architect. The building was practically completed and a certificate for final payment was requested. The architect notified P in writing that the work was not performed in accordance with the contract in certain specified particulars. D's first objection was that corner beading was omitted. The specifications call for 'wood corner beads on all exposed angles' but failed to set forth the particular kind of beading to be used. P's son, who had charge of the construction work, used a different style of beading. The architect wrote a letter stating that beads must be used but the architect admitted he had never seen that kind of bead which D desires; “nothing else will be accepted by him, so there is no other alternative, and therefore I am compelled to instruct you to make them different from what I would personally select.” Follow on letters from the architect stated that D was unwilling to compromise on the beads. The window sashes were of chestnut instead of white pine lumber as called for in the contract. P testified to the effect that the architect instructed D to use chestnut instead of pine, so as to conform to the interior finish of the house. There was a memorandum to the effect that the owner would consider the matter of using chestnut instead of white pine sash. Details of which were not mentioned in the specifications were done under the direction of the architect, and that other variations and defects were remedied after complaint was received. The architect refused a certificate of completion using as an excuse for his action P's dissatisfaction with the work. D procured a bid and entered into a contract for the additional work to fix the issues to his satisfaction. D paid the new contractor and the architect signed a certificate to the effect that, after deducting such items, a balance of $1,100 remained due P. P sued D. The case was tried three times with D getting for the first two verdicts. P died and his wife was substituted. In the last trial, the trial judge instructed the jury to consider the decision of the architect conclusive unless they found from the circumstances in the case his decision was the result of collusion with the owner and not a fair and impartial one. The court also left to the jury to say whether the contractor faithfully, honestly and substantially complied with the provisions of his contract, and further charged, if they so found, and minor defects or deficiencies existed, such defects would not prevent a recovery for the amount due under the contract, less a reasonable allowance for the cost of remedying the imperfections. P got the verdict for $1,793.94 and judgment thereon. D appealed.