Ilse v. Aetna Indemnity Co.

Citations

• 55 Wash. 487
• 104 P. 787
• 1909 Wash. LEXIS 787

Syllabus

<p>Contracts — Actions — Conditions Precedent — Architect's Certificate — Impeachment for Fraud. The stipulation in a building contract that the certificate of the architect as to the amount due shall be deemed conclusive may be impeached for fraud when an excessive amount is allowed without the exercise of the architect’s judgment.</p> <p>Dismissal and Nonsuit — Without Prejudice — Failure of Condition Precedent — Contracts—Architect’s Certificate. The successful impeachment for fraud of an architect’s certificate as to the amount due, which was to be conclusive and a prerequisite to action on the contract, does not entitle the defendant, to a final dismissal on the merits, hut only to a dismissal without prejudice to another action.</p> <p>Appeal and Error — Decision—Remand—Issues—Actions—Conditions Precedent. Where the plaintiff in an action on a building contract, in which the architect’s certificate as to the amount due was a prerequisite to the action, joined issue on an affirmative defense impeaching the certificate for fraud, and failed to seek any recovery on quantum meruit, and the court found that the architect allowed an excessive amount without the exercise of his personal judgment, the plaintiff must submit to a dismissal without prejudice, and is not entitled to a reversal with a remand for a new trial on quantum meruit.</p>