Hyperlawhypertext legal database Adams v. Mayor of New York 11 N.Y. Super. Ct. 295

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Adams v. Mayor of New York

11 N.Y. Super. Ct. 295 4 Duer 295 Court N.Y. Super. Ct. Decision date 1855-02-24 English

Judges (Before Oakuev, Oh. J.; Ddek and Slosson, J.J.)

Delivered by Slosson, J.

Contents

Majority

p. 295
William H. Adams v. The Mayor, &c., of the City of New York.

Headnote

When a plaintiff seeks to recover for work and labor performed under a written contract, containing special provisions, the performance of which, as conditions precedent, he is bound to prove, the contract or its substance must be stated in the complaint, and a compliance with its conditions be distinctly averred.
The rule of pleading, which formerly obtained in such eases, has not been altered by the Code, but on the contrary, is enforced by requiring all the facts constituting the eause of action to be set forth in the complaint.
Where a contract for work and labor requires a certificate of the performance of the work to be given by some officer or other person, to entitle the contractor to a stipulated payment, the giving of the certificate by the persons named, and in the terms prescribed, is a condition precedent to a right of action in the contractor.
But in the absence of fraud or palpable mistake, such a certificate properly given is conclusive upon the parties, and entitles the contractor to recover without any other proof of the actual performance of the work.
The contract in this case, required that certificates of the performance of the work specified should be signed by the superintendent of wharves and an inspector to be appointed and be filed with the street commissioner to entitle the plaintiff to demand the payments stipulated to be made to him. The certificates produced and proved upon the trial, and upon which the plaintiff was allowed to recover were signed only by the superintendent of wharves.
Held, that the certificates in this form were fatally defective, and that no other proof having been given of the performance or acceptance of the work contracted for, the plaintiff was not entitled to recover.
Judgment on verdict reversed; new trial granted; costs to abide event.
(Before Oakuev, Oh. J.; Ddek and Slosson, J.J.)
February 10; February 24, 1855.
p. 296
The action, was brought to recover from the defendants, the corporation of the city, the' sum of $3,941, for work and labor performed by the plaintiff. The complaint alleged that at the request of the defendants, he, the plaintiff, had rebuilt for them the inner portion and L of pier No. 45 on the North River, in the city of New York: that the work Was completed and was accepted by the defendants, and was reasonably worth the sum of $3,941, for which sum, with interest from the 26th of June, 1854, it demanded judgment.
The answer was a general denial of the allegations in the complaint.
The cause was tried before Oakley, Ch. J., and. a July, on the 17th of November, 1854. The following were the proceedings on the trial:
The plaintiff’s counsel called Charles Turner, who being sworn, testified, that he was Deputy Street Commissioner.of the city of New York; that the work referred to in the complaint, was done for the defendants by the plaintiff, under a written contract hereinafter set- forth, executed by and between the plaintiff and -the defendants.
That the work was under the direction of the Street Commissioner, and the Superintendent of Wharves and Piers. That Robert Earl, the Superintendent of Wharves and Piers of the city, filed the two certificates hereinafter set forth, in the office of the Street Commissioner. That after the expiration of fifteen days, the Street Commissioner drew a requisition on the Comptroller of the city in favor of this plaintiff, for the contract price of the work, but that such requisition was not paid. That the work in question was accepted by the Street Commissioner.
On being, cross-examined by the counsel for the defendants,, witness testified; that he had no other knowledge of the acceptance of the work by the Street Commissioner, than the filing of the certificates, the drawing of the requisition, and the fact that the lessee of the defendants had continued in possession of the pier.
The counsel for the plaintiff thereupon read in evidence the contracts and certificates, as follows:
p. 297
“ COPY OF CONTRACT FOR REBUILDING THE INNER PART OF PIER NO. 45, FOOT OF CHARLTON STREET, NORTH RIYER.
“ This agreement, made and concluded this 1st day of April, one thousand eight hundred and fifty-four, by and between the Mayor, Aldermen, and Commonalty of the city of New York, by their Street Commissioner, James Furey, of the first part, and William H. Adams, of the second part, witnesseth:
“ That the party of the second part hath agreed, and by these presents doth agree, under penalty expressed in a bond bearing even date herewith, and hereunto annexed, to rebuild the inner part of pier No. 45, N. R.”
Then follow in the contract minute observations and specifications as to the manner of performing the work, and the description of the materials to be used. These are omitted as having no bearing on the questions decided. The remaining provisions are the following:
“ The whole work and materials to be under the direction of the Superintendent of Wharves, and the Inspector to be appointed; and any work done, or materials furnished, which shall not be satisfactory to them, shall be immediately removed, and other work and materials substituted, until they shall be satisfied. Every thing which shall be necessary for the construction of the above work, to be furnished and performed by the contractor, whether mentioned in this specification or not, without extra charge.
“ Payment to be made as follows: one third part when the piles are driven, and caps and ranging timbers laid on; one third part upon the completion of the entire work, and the remaining third part at the expiration of fifteen days thereafter; provided said pier is then in good condition, and in every respect according to the specification. The several payments to be made, on the certificates of the Superintendent of Wharves and Inspector being filed with the Street Commissioner.
“ The party of the second part hereby farther agrees to receive, as full compensation, for furnishing all the materials and labor for the above work, the sum of three thousand nine hundred and
p. 298
forty-one dollars, and to complete tlie same in sixty days from tlie date of this instrument, under the penalty of twenty dollars per day after the time expires, to be deducted from the amount to be paid to him; and also binds himself to commence the work immediately on signing the contract, and to pay the Inspector for the time he may be employed on the work after the time has expired.
“ In witness whereofj the parties to these presents have hereunto set their hands and seals, the day and year first above written. .
“Wm. H. Adams, [l.s.]
“ Signed and sealed in the presence of
• “Gr. T. ROGERS.”
“ This is to certify, that Wm. H. Adams is entitled to his first payment on contract for rebuilding pier at the foot' of Charlton street.
“ New York, June 6, 1854.
“Robert Earl,
“ Supt. Wharves.
“ June 26th, 1854.
“ James Furey, Esq.
“ This is to certify that Wm. H. Adams is entitled to his second payment on contract for rebuilding pier at the foot of Charlton street.
“Robt. Earl,
“ Supt. Wharves
Robert Earl, for plaintiff, being duly sworn, testified that he was Superintendent of Wharves and Piers, and had charge of the work in question, and that the same was done under his direction, and the certificates made and signed by him. That he approved of and accepted the work. That from tie completion of the work, a lessee under the corporation had been in possession of the pier, collecting wharfage.
On his cross-examination he said: “ I mean by acceptance of the work, that I gave the certificate referred to.”
Abraham Miller, sworn for plaintiff, testified, that he has been the lessee from the corporation of the pier No. 45 in question,
p. 299
■under a lease executed before this contract for repairing, and that during the repairs by the plaintiff he paid no rent on this lease; but that he has paid rent on the same to the Corporation since the same was completed by the plaintiff.
The counsel for the plaintiff rested his case, and the counsel for the defendants moved to dismiss the complaint on the grounds—
1st. That the complaint and proof did not show a cause of action.
2d. That the action not being brought on the contract, there was no evidence as to the value of the work performed by the plaintiff.
The court denied the motion, and the counsel for the defendants excepted.
The counsel for the defendants then offered to prove:—
1st. That the plaintiff had utterly failed to perform the work in question according to the terms of the contract, and that the same was but partially done, and that unskilfully.
The court refused to admit the evidence, on the ground that the certificate of the Superintendent, Earl, concluded the defendants from introducing such evidence, or any evidence tending to contradict or modify such certificates, to which decision the counsel for the defendants excepted.
The counsel for the defendants thereupon rested his case, and the court directed the jury to find a verdict for the plaintiff, subject to the opinion of the court on a case to be made, to be heard at the General Term, ifi the first instance.
The jury thereupon rendered a verdict for the plaintiff for the sum of $4,053x#ir.
A. J. Willard, for the plaintiff,
moved for judgment on the verdict, and in support of his motion argued as follows:
I. The plaintiff proved upon the trial, that the defendants had agreed to pay him a specific sum for performing the work in the complaint mentioned; that the work was done under the direction of the Street Commissioner, and of the Superintendent -of Wharves, and was approved and accepted by the Superintendent of Wharves, and by the Street Commissioner, and a requisition made in plaintiff’s favor on the Comptroller for the contract price,
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which, was not paid. If, therefore, these officers acted within the scope of their legal authority, the plaintiff’s case was fully made out.
II. The Street Commissioner, and the Superintendent of Wharves acting under him, possessed exclusive authority to determine the plan of the work, in all its details, and to alter that' plan from time to time; to enter into contract for the work, and to provide from time to time for necessary alterations in the work, either by suitable provisions in the contract, as originally drawn, or by subsequent arrangement with the contractor; to determine whether the work was properly executed, and to accept the same •, and their acts, within this line of authority, are corporate acts, binding the corporation in the same manner as an individual is bound by his duly constituted agent. - (Charter, 1849, sec. 12.)
HI. Both of the grounds on which the defendants prayed a nonsuit, are untenable, and the court properly refused to grant' a nonsuit. 1. As to the objection that the proof did not show a cause of action, it was wholly without foundation. 2. As to the objection that the action was not brought upon the contract, and that, therefore, there was no evidence of the value of the work performed, we say, 1st. That the action is brought upon a ’ special contract to pay a specified sum for the work. 2d. But if it was otherwise, the contract furnishes the only measure of value proper to the case.
IY. The evidence offered by the defendants, and rejected by the court, constituted a single proposition; it was rejected by a single ruling; and the defendants excepted to the ruling as an entirety, and consequently, if inadmissible as to either branch, it was properly excluded as a whole, and the ruling cannot be disturbed.
Y. The proof offered that the plaintiff had utterly failed to perform the work in question, was properly rejected, for the following reasons: 1. As subversive of the contract rights and obligations between the contracting parties. 1st. It improperly assumed that the written contract in evidence constituted the true and only contract between the parties. 2d. The true contract between the parties includes not only the written contract, but •such variations in its terms as were authorized or directed by the Street Commissioner. 3d. If there was a variance in the con-
p. 301
straction of the work from the original plan,-we are bound to presume, in the absence of - any suggestion to the contrary, that such variance was with the authorization and direction of the Street Commissioner. 4th. The highest evidence of this, is the fact, that the work was approved and accepted by the Street Commissioner and the Superintendent of Wharves, and was done under their direction. 5th. If there was a variance, it was obviously the understanding of the parties that the fixed contract price should still govern. II. — -It is inconsistent with the rights of these officers to determine whether there had or had not been a complete performance. (Charter, 1849, sec. 12.) III. — The clause in the contract, that payment should be made on filing the certificates of the Superintendent of Wharves, is not only a condition precedent, on which alone the contractor should become entitled to payment, but a condition absolute, on which his right became perfect. 1st. Had the certificate been withheld, the contractor could not have obtained his payment, except' he could show fraud in the withholding. 2d. So the certificate having been given, it can only be attacked on the ground of fraud, or possibly of accident and mistake. 3d. Ho objection of this kind being made to -the certificate, it is final. IY. — It is also inadmissible, as the work was accepted by the competent corporate authority. 1st. The proof as offered could only go to destroy the plaintiff’s entire right to compensation, upon the ground that there had been no performance of the contract, it does not assume merely to qualify or reduce his claim in amount. 2d. But the acceptance of the work precludes the defendant from opening such an issue. 3d. The propositions of law stated under the next point will further elucidate this view. (See Burn v. Miller, 4 Taunt. 745.) Y. — The branch of the defendant’s offer of proof under consideration is not broad enough in any aspect of the case to render the evidence admissible, inasmuch as it does not propose to show that the work was less useful or valuable, or even costly, as executed than as contemplated by the written contract. 1st. The defence is in itself purely technical, and does not affect the equitable claim of the plaintiff. 2d. It is not a necessary or presumable consequence of its admission that the plaintiff’s claim would have been reduced or affected in any way.
p. 302
YI. The branch of the defendant’s offer of proof relating to a supposed unskilful execution of the work is equally inadmissible. I. — The action being upon a special contract with a stipulated price, evidence of unskilful execution is not admissible; at all events, it cannot be set up, unless pleaded by way of recoupement. 1st. This doctrine was held in Brown v. Davis, cited in a note to Bastin v. Butler, (7 East. 478,)-.approved by Lord Ellenborough, in Bastin v. Butler, who distinguished the latter case from Brown. v. Davis, and followed in Everitt v. Gray, ( 1 Mass. 101 ,) and though held not to apply to a claim upon a quantum meruit, seems to be undisturbed. 2d. The evidence, if admissible, under any state of the pleadings, is a distinctive defence by way of recoupement, which should have been pleaded. II. — But even had the contract price been undetermined by the contract, the defence still must, under the Code, be pleaded in order to be available. (Code, § 159.) III. — It is neither broad enough nor specific enough. It does not appear whether it was the unskilfulness of the plaintiff'in executing the work, or of the Street Commissioner in designing it, nor whether such want of skill affected the value of the work. 1st. The plaintiff having established a meritorious claim, every intendment is against the defendant, except so far as precluded by the terms of his offer. 2d. The offer not being broad enough was properly rejected. IV. — Under the contract such evidence cannot be received without first showing that notice was given. to the plaintiff that the work was not satisfactory, and to remove the same; and the failure of the plaintiff to comply with such direction and to make the work good.
VII. The plaintiff is entitled on the whole case to judgment on his verdict, there being no error in the rulings of the court excluding evidence.
B. J. Dillon, counsel of the corporation, for the defendants,
insisted, upon the following grounds, that the plaintiff was not entitled to recover:
1. The complaint does not aver the contract produced, nor does the proof show its performance. 2. The certificates of the ' Superintendent of Wharves are not evidence of performance. 1st. They are not made so by the contract. 2d. Those for the first two payments are not sufficient, under the contract; they do
p. 303
not state the work done, "which, by the contract, justified payment, but contain merely his opinion that the plaintiff was entitled to payment. 3d. No certificate was made or filed, to justify the third or final payment ,• this payment was not to be made until fifteen days after the completion of the entire work, provided it should then, at the end of that time, be in good condition. 3. If Earl, the superintendent, had testified (as he did not) to the same facts, required to be stated in the certificate to justify the third payment, it would not have been sufficient, (Smith v. Briggs, 3 Denio, 73 .)
n. The plaintiff cannot recover upon the quantum meruit. 1. There was no proof of the value of the work. 2. The plaintiff could not invoke the contract to show the value of the work, unless he also showed that the work was done according to the contract, which he did not show. 3. The acceptance and approval of the work by the Street Commissioner and Superintendent of Wharves, did not reheve the plaintiff from the necessity of showing the work done, and its value. Independent of the contract, those officers had no right or power to bind the defendants; nor, under the, contract, had they any right to waive its performance, especially since the Amended Charter of 1853, requiring contracts to be let to the lowest bidder. 4. The defendants never consented to aji abandonment or waiver of the contract, nor accepted the work. The plaintiff repaired a pier, which the defendants had leased. After the repairs, the lessee used it, and paid rent to the defendants. This amounts neither to waiver or acceptance. (Paige v. Ott, 5 Denio, 406 .)
HE. The evidence offered by the defendants to show that the work was but partially and unskilfully done, was admissible. 1. The plaintiff claimed to recover for his work a quantum meruit, what it was reasonably worth. The evidence offered was therefore pertinent to the issue. (Grant v. Button, 14 J. R. 277; Fatf v. Montague, 14 Mass. 282 .) 2. The defendants were not concluded by the certificates of the Superintendent Earl. 1st. Earl had no right to make any certificates, except by virtue of the contract. This is not a suit upon the contract. 2d. The two certificates proved contain no statement of facts, but of opinions, and the third certificate required by the contract, was not proved. 3d. The meaning and spirit of the contract is, that payments
p. 304
should be made upon two conditions; 1st. That the work should be completed according to the specification, and should, continue in good condition for fifteen days thereafter; and 2dly. That certificates of those facts from the Superintendent and Inspector should be furnished. It was competent for the-defendants, at least, to show that one of those conditions had not been complied with.
• IT. The contract alleged in the complaint was not proved; on the contrary, a'special sealed contract was produced, but no .evidence given to show either its performance or abandonment. This was not allowable prior to the Code, and should now be discouraged. (Sunnydale v. Livingston, 10 J. R. 36s; Ohamplin v. _ Butler, 18 J. R. 169; Richards v. Stanton, 16 Wend. 25 ;' Dubois v. Del. Co. 4 Wend. 285 ; 12 id. 334 ; 15 id. 87; Hollinshead v. Machier, 13 Wend. 276 ; Merrill V. Ithaca Go: 16 Wend. 586 ; Raymond v. Beavand, 12 J. R. 274; Jennings v. Camp, 13 J. R. 94; Ladue v. Ferguson, 24 Wend. 60 ; Smith v. Smith, 1 Sand. 206.) '
Y. The complaint should be dismissed with costs. If a new trial be ordered, it is respectfully submitted, that the court should express their opinion upon the points taken, with a view to the second trial.

By the COURT.

The plaintiff counts on a quantum meruit, for work and labor upon pier Ho. 45, North River.

On the trial, he proved by the Deputy Street Commissioner, that the work "was done under a written contract.

By the contract, it appears that the work was to be done under the direction of the Superintendent of Wharves, and an Inspector to be appointed; and that the payments were tó be made as fob I5ws: one-third when a certain portion of the work was done, one-third when the work.was completed, and the remaining third at the expiration of fifteen .days thereafter — the several payments to be made on the certificates of the Superintendent of" Wharves and Inspector being filed with the Street Commissioner.

The plaintiff then read in evidence two certificates by the Superintendent of Wharves, not signed, however, by any one answering the designation of Inspector, and proved that those two certificates were filed in the office of the Street Commissioner.

p. 305
He then proved that from the time of the completion of the •work, a lessee of the corporation, under a lease executed before the contract in question, had been in possession of the pier, collecting wharfage; that while the repairs were in progress the lessee paid no rent, but that after they were completed he paid rent to the corporation.

The defendants offered to prove that the plaintiff had failed to perform the work according to the terms of his contract, &c., but the presiding Judge refused to admit the evidence, on the ground that the certificates of the Superintendent concluded the defendants from introducing such evidence, or any evidence tending to contradict or modify such certificates, and a verdict was taken, subject to the opinion of the court.

We think the plaintiff should have set out the contract in his complaint, with proper averments of the fulfilment of the conditions on which his right to receive payments depended.

Where a special contract has been rescinded or abandoned by the parties, or put an end to by the wrongful act of the defendants, the plaintiff may resort to the common counts.

So where the work has been completely executed; so, also, where the work has been done pursuant to the contract, except as to time, and the defendant permits it to be done after the time has expired, the common counts are sufficient; and yet, in the two latter cases, the contract" being still a subsisting one, the plaintiff must produce it upon the trial, in order that it may be seen whether the work has been done in pursuance of it, and whether the stipulated time and mode of payment are such as to warrant a recovery without declaring specially on the contract, and for the further purpose of fixing the amount of damages.

But if the contract contain such special provisions as require an allegation of performance, before the plaintiff would be entitled to recover, then the proper mode of declaring is on the contract itself, and not on the general counts. (Livingston v. Livingston, 10 J. R. 36; Smith v. Smith, 1 Sand. S. C. R. 206; Ladue v. Seymour, 24 Wend. 60 ; Jewett v. Schroeppel, 4 Cowen, 564; Coon v. Greenman, 7 Wend. 121 ; Merrill v. Ithaca and Oswego R. R. Co., 16 Wend. 586 .)

Such was clearly the rule before the Code, and although the same specialty in pleading may not be now required, the same

p. 306
certainty in the statement of material matters is still required; The plaintiff is now obliged to state the facts which constitute his cause of action, which means, as has been well expressed, “the facts to which the law is to be applied, and from which the judgment of the court is to be deduced.”

• It cannot with propriety be said that the plaintiff has fully stated the facts constituting his cause of action, if his right to a recovery depends upon the fulfilment of special stipulations- in a written contract, and he omits to state the contract itself, and allege a compliance with its conditions as part of his case. We suppose the rule to be the same now as it was before the Code; where the contract, supposing it to be fully executed, contains no special stipulation or condition requiring an averment of performance or fulfilment, a complaint in the general form, for work and labor, stated with sufficient particularity to enable the court, if the facts be admitted or proved, to render judgment, would be sufficient now, as a declaration on the. common counts would have been before the Code, though the production of the contract on the trial would stiff be necessary, for the reasons above stated; but where the contract contains special stipulations or provisions, a compliance with which is necessary to be shown before the plaintiff would be entitled to a verdict, then the contract becomes necessarily a part of the plaintiff's case, and should be set out at length, or in substance, with proper averments, to show that the conditions to the plaintiff’s right of recovery have all been complied with. Such a contract, and such a' performance, or fulfilment of conditions, become facts constituting the plaintiff’s cause of action.

The plaintiff, in the present case, has evidently proceeded upon ' the idea that, the work being fully performed, he had a right to disregard the special contract, except as part of his proof; but on looking into the instrument itself, we find it to contain provisions which constitute conditions precedent to any right of recovery, and performance of which, should, therefore, have been alleged.

Thus, the work was to have been done “in strict conformity” with certain specifications, and the payments were to be. made on the certificates of the Superintendent of Wharves and Inspector being filed with the Street Commissioner.

It may perhaps be conceded, that an allegation of the filing of

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these certificates would have raised a sufficient presumption that the work had been done in conformity with the specifications, so as to haye dispensed with a distinct averment of compliance with the latter condition; but it is manifest that the plaintiff should have averred, at least, thus much, to show himself entitled to any thing.

The filing of proper certificates was a strict condition, precedent to the obligation of payment. (Smith v. Briggs, 8 Denio, 73 .)

As the case stood, therefore, when the plaintiff rested, had the complaint been dismissed on the defendant’s motion, the ruling of the Judge in that respect, would not have been disturbed by the General Term; but the motion was denied, doubtless, in order that other questions involved in the case, materially affecting the merits, might receive the consideration of the court, and as the power of the court to allow amendments in pleadings is now almost unlimited, we think the direction thus given to the case quite as well as to have driven the party to a new action, and subjected him to the entire costs of the present suit.

The principal question thus reserved for consideration was the effect of the certificates of the Superintendent of Wharves— whether they concluded the defendants as to the payment of the price agreed upon, the defendants having offered to show that the plaintiff had failed to perform the work according to the terms of the contract, and that it was but partially and unskilfully done, and the learned Judge having overruled the offer, on the ground that the certificates concluded the defendants from introducing such evidence, or any evidence tending to contradict or modify such certificates.

In considering this question we shall, as requested by the counsel on the argument, also express our views as to the form in which the certificates in question were made.

They simply state that the plaintiff is entitled to his first and sécond payments on the contract for rebuilding pier at the foot of Charlton street, and are signed by Robert Earl, the Superintendent of Wharves, only, there being no signature of a person answering the designation of “Inspector,” as provided in the contract.

By the terms of the contract, the first payment was to be made when the piles were driven, and the caps and ranging timbers

p. 308
laid on; the second, when the entire work was completed, and the third at the expiration of fifteen days thereafter, provided the said pier should be then in good condition, and in every respect according to the specification, and then follows the clause that these payments are to be made on the certificates of the Superintendent of Wharves and Inspector being filed with the Street Commissioner.

In Smith v. Briggs, ( 3 Denio, 73 ,) the exact language of the certificate required to be given was specified in the contract, and the court held that the giving of the certificate in the very terms prescribed, or, at least, in its substance and spirit, was a condition precedent to a right of action.

The contract in the present case does not provide for the form of the certificates, nor direct what they shall contain; but, construing them in the connection in which they are mentioned in the contract, we think it clear that it was intended by the parties that they should contain something more than a mere positive assertion that the plaintiff was entitled to his payment. They should have designated the condition and progress of the work at the dates at which they were given — and there is a good reason for this, for otherwise the defendants could not so readily detect a fraud on the part of their officer, should one be attempted.

In the absence of such fraud, or of a palpable mistake on the part of the officer'making the certificates, we suppose that the filing with the Street Commissioner of proper certificates, within the meaning and in pursuance of the terms of the contract, would oblige the defendants to make the payments stipulated for in the contract.

While we cannot approve of the form of the certificates in question, as not expressing what we think it was intended they should express, we should feel reluctant, in the present action, to adjudge them wholly insufficient for that reason, as they were, for all that appears, made in good faith, and have probably followed a common formula in building contracts of this kind. In certifying that the plaintiff was entitled to payment, the officer undoubtedly supposed that he was, in effect, certifying that the work was in that stage of progress or completion, at which, by the terms of the contract, the payment was due; and we should probably, for the purpose of this action, give this construction to

p. 309
them, were it not for another defect in them, already hinted at, and which we consider fatal. They are not signed by any officer answering the designation of “ Inspector.”

The contract provides, that “ the whole work and materials are to he nnder the direction of the Superintendent of Wharves, and the Inspector, to he appointed,” and that “any work done, or materials furnished, which shall not he satisfactory to them, shall be immediately removed, and other work and materials substituted, until they shall he satisfied.” And then, as before stated, provides, as a condition of payment, for the filing with the Street Commissioner of certificates by both these officers.

It is urged, in answer to this objection, that the appointment of the inspector rested with the defendants, and that they are therefore precluded from raising it.

We cannot accede to this view of the matter. It was a part of the contract between the parties, that an inspector should be appointed, and it was the plaintiff’s right to have the appointment made.

There is nothing to show that an inspector was not in fact appointed, nor, assuming that he was not so appointed, that it was exclusively the defendants’ duty to appoint him; and even if it were so, the plaintiff might have enforced the performance of it, if refused by the defendants.

It is enough, that the court sees that the certificates axe not complete by the very terms of the contract, without the signature of that officer, and we hold this defect to be fatal to the certificates in question.

The attention of the Judge was not called to this omission on the. trial, and by an equally singular oversight, no notice appears to have been taken of another omission in the plaintiff’s proof, and which would, of itself, even supposing the certificates proved to have been sufficient, render a new trial necessary.

The plaintiff proved the filing of but two certificates; whereas, the final payment was not to be made until the third certificate was also filed; and it is clear, that the plaintiff could not recover for the whole work 'Until he had shown that this condition had also been complied with.

It was contended that the defendants had accepted the work by receiving rent from their tenant after the repairs were com

p. 310
pleted, and must, therefore, be beld to Rave waived tbe proof of. a strict compbance with tbe terms of tbe contract.

"We do not coincide in tbis view. Tbe premises were rented before tbe contract with tbe defendants was entered into; and tbe tenant, tbougb released from rent during tbe time tbe work'was in progress, bad a right to resume tbe possession immediately after its completion; and as, from tbat time, be was legally bound to pay tbe rent, tbe defendants were legally entitled to receive, it — . tbeir doing so could bave no effect whatever. on tbeir rights and obligations under tbeir contract with tbe plaintiff. There must, therefore, be a new trial, with costs to abide tbe event.

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