Schenke v. Rowell

Citations

• 7 Daly 286
• 3 Abb. N. Cas. 42

Syllabus

<p>Where in a building contract the certificate of the architect that the building has been done in compliance with the contract is made a prerequisite of payment for such building, the architect is accepted by the contracting parties as an umpire, and neither party can avoid the effect of his certificate or refusal to give a certificate by the mere allegation that his certificate or refusal is unreasonable, nor can the parties litigate the matters thus submitted to him, until he is divested of his powers as umpire by death, incapacity, resignation, or refusal to act.</p> <p>In an action to recover the contract price for the erection of a building, a complaint setting forth a contract which provided that payment should be made when the work was done according to the contract, approved of by the architect, and a certificate of performance given by the architect, and alleging that plaintiff performed the work according to contract, that the defendants accepted the work, and that the' architect had unreasonably refused to give the certificate, is bad on demurrer, as not stating facts sufficient to constitute a cause of action.</p> <p>Held, further, that such complaint was defective in substance ; that the mere allegation of complete performance of the work did not show.a right of action, since there was no architect’s certificate; that the failure of the complaiut to show that the architect’s certificate had been given was not remedied by an allegation that the certificate was unreasonably refused, and that the mere allegation that the defendants had duly accepted the work, without the additional allegations that such work was a full compliance, and was received by the defendants as a full performance, did not remedy the omission of the complaint to show that such certificate had been given.</p>