Fay v. Moore

Citations

• 261 Pa. 437
• 104 A. 686
• 1918 Pa. LEXIS 760

Syllabus

<p>Contracts — Building contracts — Architect’s certificate — Capri cious refusal of certificate — Collision—Substantial performance— Minor defects — Deductions—Charge of court — Failure to request —Evidence—Striking out — Conclusion of law — Discretion of court.</p> <p>1. Where, in an action on a building contract brought by the administratrix of a decedent’s estate to recover the balance alleged to be due from defendant who was the owner of a building constructed by plaintiff’s decedent, it appeared the contract required that payments be made only upon the certificate of the architect and that the architect had not given a certificate; but where it appeared that the refusal of the architect to give the certificate was due to the fact that the architect objected to certain wood comer beading which had been used by the contractor; and that', in condemning the bead, the architect was not acting upon his own judgment as to the sufficiency of the work but at the dictation and to satisfy the whim of the owner, the fact that the architect’s certificate was not produced did not necessarily preclude plaintiff from recovery.</p> <p>2. Where objection was made to the use of chestnut instead of white pine lumber as called for by the contract in the making of window sashes, but there was evidence that, although the contract ■ provided that alterations should not be made except on the written order of the architect, and no such written order was given, the alterations were made at the request of the architect with the acquiescence of the owner so as to conform to the interior finish of the house, the case was for the jury.</p> <p>3. Provisions in a contract requiring the production of the certificate of the architect showing completion of the work are intended as a protection of the'owner against unjust claims by the contractor and to see that the contractor properly performs his agreement, and, in cases where the evidence establishes the refusal of the architect to be capricio