Weeks v. Little

The first question to be determined in this case is whether the action can be maintained at all in respect to the plaintiffs’ bill for extra work. The contract provided that, “should any dispute arise respecting the true value of the extra work or of the works omitted, the same shall be valued by two competent persons, one employed by the owner ■and the other by the contractor, and those two shall have power to name an umpire, whose decision shall be binding on all parties.” Early in the reference the defendant’s counsel objected to any proof by the plaintiff in regard to the extra work, because of the provision of the contract above quoted, but the objection was overruled on the ground that an unexecuted agreement to arbitrate is not a bar to an action upon the subject in controversy. As a general rule this principle is well settled, and the case of Hurst v. Litchfield ( 39 N. Y. 377 ), applied this principle in a case almost exactly identical with the one at bar. At a later period in the reference, however, the case of Delaware, &c. Co. v. Pennsylvania Coal Co. ( 50 N. Y, 250 ), was called to the attention of the referee. That case, while reiterating the general rule that “an agreement to refer all matters of difference or dispute that may arise to arbitration will not oust a court of law or ■equity of jurisdiction,” seems to draw a distinction between that class of cases in which “ the parties undertake, by an independent covenant or agreement, to provide for an adjustment and settlement of all disputes and differences by arbitration to the exclusion of the courts,” and the class in which “they merely, by the same agreement which creates the liability or gives the right, qualify the right by providing that before a right of action shall accrue, certain facts shall be de

But I am not able to find any proof m this case that any dispute did arise between these parties respecting the true value of the extra work, or of the works omitted. It must be borne in mind that this provision for arbitration applied only to a very narrow subject of dispute. The contract, after providing for the construction of the building and for the price to be paid therefor, provided that if any dispute arose respecting the true construction or meaning of the drawings or specifications, the same should be decided by the architect; that the work should be done to his satisfaction and under his direction, to be testified by a certificate under his hand, and that the payments should be made in installments, in each case, upon such certificate. It will thus be seen that the architect was to decide substantially all disputes about the fulfillment of the work under the contract, and in conformity with fhepjlans and specifications. But the contract contained also a clause permitting the owner, at any time during the progress of the building, to request any alteration, deviation, additions, or omissions from the said contract, and that the same should not affect or make void the contract, but should be «added or deducted from the amount of the contract, as the case might be, by a fair and reasonable valuation. And it was only in case of such additions or omissions and of

It is contended in the next place that the certificate which was given was not conclusive because it appeared upon its face that some of the work was not done. The certificate states that the last coat of painting in six of the suites of apartments, which were then occupied by tenants, was not finished, and recommends the withholding of $180 from the last pay

The architect’s certificate, then, is conclusive, upon the plaintiff’ s right to recover the balance, due under the contracts, unless it was given fraudulently or by mistake. The defendant alleges that it was so given, and the principal controversy in the case has been upon that point.

There is no proof tending to show that the certificate was given by mistake.

The plaintiffs applied to Mr. Gilman for a certificate in the early part of November. Mr. Gilman examined the premises and made out a written list of things to be done, which was dated November 16, and gave it to Mr. Weeks. He also obtained from Mr. Jones, the janitor of the building, who had formerly been a carpenter, a similar list, which he also gave Mr. Weeks. In December, he twice personally made a thorough examination of the building, once with Mr. Crooks, an architect, and once alone. He also had two others, Mr. Harnett, an experienced architect, and Mr. Keeley, an old and experienced builder, examine the house. He knew that the defendant was dissatisfied. Finally, on December 20, he wrote to Mr. Jackson, stating that if there were shortcomings'in the work which he had been unable to détect, he would be glad to have a list of them. He thereupon received a reply in which Mr. Jackson refused to furnish any list. He then, on December 24, executed the certificate and delivered it to Mr. Weeks. After doing so, however, he asked Mr. Weeks to withhold it a few days, and on December 27,

Nor is' there in this case any testimony tending to afford what may be called direct' proof of fraud. A large amount of testimony has been taken in regard to the actual condition of the building, the defendant claiming that the faults in it were so gross and so obvious as to justify the inference that the architect acted fraudulently in certifying to its completion. The effect of this testimony will be considered later, but aside from it there is, in my opinion, no testimony Avhatever tending to prove that the architect acted fraudulently in giving the certificate.

The defendant’s counsel contends that the fact that the architect did not discover or make known the insufficiency of the walls when the first contract was made, and prepared specifications which are alleged to have been vague and lacking in precision, are proof that he acted fraudulently in giving the certificate. They may or may not be facts of which Mr. Little can complain, but I do not see that, they have any connection with the. giving of the certificate. It is also claimed that the change of the date of the certificate affords proof of fraud, but I can see in that act nothing but a natural desire to avoid irritating Mr. Little, whom Mr. Gilman knew to be somewhat dissatisfied. So it is claimed that the certificate was given furtively, without notice to Mr. Little. But it seems to me that Mr. Gilman’s letter of December 20, to Mr. Jackson, was sufficient notice that Mr. Gilman thought the work completed. There is no proof of any conspiracy or collusion between Mr. Gilman and the plaintiffs. There is no proof that Mr. Gilman was under any obligations to the plaintiffs

In considering the effect of the defendant’s testimony in regard to the condition of the building it is proper to say at the outset that considerable testimony has been given in regard to deviations from the plans and specifications, which is fully explained by the fact that such deviations were agreed upon in the course of the work. Other apparent deviations from what are known as the second set of plans are also explained by the fact that the second set of plans contain some things indicated as to be done, which were drawn upon them, but were not in fact decided to be inserted.

The architect at the outset prepared a set of plans and specifications based upon the idea of using certain walls and portions of the old houses on the premises. These plans and specifications were signed as a part of the contract. Afterwards it was decided to entirely demolish the old buildings and to build anew, and additional stories were also subsequently added. A new set of plans were thereupon drafted, but were not signed, and no new specifications were prepared, but the old specifications seem to have been applied to the new plans. Mr. Buckingham, an architect-,' who has testified with clearness and precision in regard to the

The most serious faults in the building are those resulting from settlements. There are three distinct parts of the building where settlements occur, one in the east suite, one in the library of the south suite, and one about the light-shaft. The effect of these settlements is to make the floors and ceilings slope down towards the point of sinkage, to crack the plastering, to make the frames of doors and other trimming out of level, to make the doors bind, &c. These results ap

The effect, particularly in the upper- stories, is most serious. A number, of the floors and' ceilings there have such a slope that it is palpable at a glance, the' frames of doors are so out of level that it will be necessary to take them out of the wall to straighten them, and to replaster around them when they are,put back, as has already been done in a number of instanc s. There are several doors there which have become so deflected that when they are shut in the frame of the door there remains an open space over the top of i e door. The cracks in the walls are very large and extensive. Some cracks in the uppermost stories were, I should think, more than one inch in width. In short, the consequences of these sinkages are very detrimental to the house, and I have no hesitation in saying, that if they were due to any acts or omissions of the plaintiffs in violation of the contract, I should hold that the architect’s certificate had been fraudulently obtained by the plaintiffs, and was invalid.

But I am convinced that these sinkages are not due to any violation of the contract by the plaintiffs. They are due, in my opinion, to the character of the plan itself and the weakness of the construction in accordance with it. Mr. Gilman and other witnesses for plaintiff have given much testimony in explanation of this matter. It is generally to the effect that Mr. Little was unwilling to incur the expense which the use of iron beams would have entailed, and was desirous of having open stores on the first floor. He was therefore obliged to use wooden beams, and was not able to run up the usual brick partitions from the cellar under the partitions on the upper stories. Mr. Gilman says that this style of construction necessarily involved some sinkage, and it clearly appears in testimony that

The next most serious fault asserted by the defendant, in the construction of the house, is the general carelessness and roughness of the finish of the woodwork. It appears in testimony and is evident upon inspection that the moldings, panels and trimming, generally, of the woodwork throughout the house, were to a certain extent rough and carelessly done ; in some places the mark of the saw is apparent on the wood ; the windows in some places leaked ; the trim in some places was not level, and generally in my opinion the finish of the woodwork was of quite an ordinary character ; in the six apartments which had not received the last sandpapering and coat of paint provided for in the last certificate, the woodwork is admitted by all parties to have been improperly finished. In the other apartments, however, whatever criticisms may be made upon the work, I cannot hold that the finish was so faulty as to require the inference that the architect acted fraudulently in giving the certificate. The architect originally exercised his judgment in the matter. A large quantity of the woodwork which was sent to the house was rejected and sent back to the mill, and presumably that which remained was deemed satisfac

The other faults referred to by Mr. Buckingham and the defendants’ other witnesses seem to me much less important than either the sinkages or the roughness of the finish of the woodwork. The principal objections which he makes and which have not been referred to are that the caps of certain soil-pipes were not properly soldered, that certain sash were improperly weighted, that some sliding-doors stuck, that some window catches were put on the wrong side of the window, that the fan-lights over doors had plain glass instead of ground glass, that there were in some windows soft pine parting strips, that some wash-tubs-leaked, that some trap-doors in the balconies could not be lifted, that the moulding around the wire netting of the elevator doors was too small, that the saddle of the elevator door projected too much, that certain roof sky-lights leaked, that the concrete cellar floor was bad in spots, that certain ventilator pipes were faulty, that some of the water-closet pulls needed to have a screw put in another place, that certain sash was VÁ inch in width and not 1M inch ; that all sash was too narrow, that the glass in the main door was decorated by a sand-blast process instead of being engraved by hand, that the glass throughout was poor in quality, that the basement stairs were unsuitably finished, that some architrave blocks do not match, that some dumb-waiter doors are other doors cut down, that the main balustrade rocks, that there is no gutter on the edge of the roof, that the library flue in the east suite does not draw,. that some flues leak, that the boiler pipes are brass instead of copper, that certain sinks have traps in the leg instead of outside traps,

This list seems formidable by its length, but most of these alleged faults are satisfactorily explained ; in some cases the method of construction alleged to have been faulty was expressly directed by the architect, in other cases the work complained of was extra work not undertaken by the- plaintiffs at all, in others the work was originally well done and afterwards torn up by other parties and not left in good order, in others certain things the omission of which is alleged as a fault were not required to be furnished by the contracts, in others it is a question of doubt what the plans and specifications did call for upon which by the contract the architect’s conclusion was final, in others the fact alleged is denied, and in many cases the faults complained of are of themselves trivial.

Upon the whole, therefore, I think the architect’s certificate is conclusive. Fraud is never presumed. It must be proved. The burden is on the defendant to prove it in this case, and I thing he has failed to overthrow the legal presumption that the architect, in giving the final certificate, did not act in violation of his duty to his employer.

The original contract provided that the building should be completed on September 1, 1877, and that for each day after that date that the work should remain unfinished, the plaintiffs should pay the owners $20 a day as liquidated damages, and not as a penalty,

The same contract contains a clause providing that, “should the owner at any time during the progress of the said building request any alteration, deviation, additions, or omissions from the said contract, he shall be at liberty to do so, and the same shall, in no way, affect or make void the contract,” etc.

After the work had progressed a few weeks under this contract, it became evident that the Avails of the old buildings could not be used in the new one, and that alterations -in the contract would be necessary. Various alterations were discussed for some weeks, and at length certain alterations were decided on. Ultimately, two stories, in addition to Avhat were originally contemplated, were added. At some time, when some of these additions were under discussion, an interview took place between Mr. Jackson, Mr. Weeks,' and Mr. Little, at which it was agreed that the plaintiffs, in case certain additional ■ work should be done, should be allowed one month, or till October 1, in addition to the time fixed by the contract, in which to complete the work. The witnesses differ as to the time of that conversation ; the defendant’s witnesses putting it at the time of the execution of the acceptance of the second contract, and the plaintiff’s witnesses putting it early in the work. There is nothing in which the memory is more treacherous than dates, and I think, from Mr. Candee’s testimony and from some other circumstances, that the conversation in question took place early in the work, before the entire work ultimately done was decided upon, and that the additional four Aveeks spoken of as necessary for the completion of the extra work referred to the extra work then contemplated, which was much less than was ultimately done. But if the additional month then spoken of did refer only to the work then con

The other counter-claims of the defendant are not admissible. The damages were liquidated at $20 a day. If, in addition, the defendant could be allowed to prove actual damages, the provision for liquidated damages would be nothing but a penalty.

The following statement shows the amount which in my opinion is due to the plaintiffs:

Total amount due plaintiffs is, with interest from December 27, 1877 .... $8,551 76

The amount of the claim of the defendants Spitz & Henschel and the validity of their lien are not disputed by anybody. The amount due them is $308.11, with interest from December 27, 1877, and as their lien was filed first it is entitled to priority over the others.

The defendant Eiker asserts no claim in this action and disclaims any lien on the property.

The defendant Mayhew claims to recover $92.50 for a balance due on his contract, and $658.67 for extra work. He made a contract with Hiker to furnish all materials and do the work of painting, etc., according to specification and to the satisfaction of the architect. The specifications required that all the interior pine finish be painted with three good coats in the best manner.

The plaintiffs in their general contract with the owners contracted to build the entire building, and were responsible to them for its completion. The plaintiffs made a contract with 'Hiker for the carpenter work, which included painting, and Hiker made another contract with Mayhew for the painting. May-

Upon this point the testimony is quite conflicting. A number of men employed by Mayhew testify that the three coats were substantially put on throughout the house. Two witnesses, however—William Bichards and James Bichards, to whom Mayhew sublet the painting of two floors testified that Mayhew told them, after two coats were put on— that the work looked

The judgment to be entered, therefore, should provide that the defendants Spitz & Henschel are entitled to recover $308.11, with interest from Becember 27, 1877, and their costs, and have a lien for such amount upon the premises mentioned in the complaint, and that their lien is prior in rank to that of any parties in this action; that, the plaintiffs are entitled to recover

Judgment was entered in conformity with the views of the referee.

From such judgment the plaintiff and defendant Little appealed.

The defendant Little appealed from the whole judgment.

The plaintiff from so much as adjudged them in

It. W. Be Forest, for plaintiffs.

Jackson <6 Martine, attorneys, and Okas. A. Jackson, of counsel, for defendants.

This is an action upon a claim filed under the mechanic’s lien law. The case was tried be-for a referee and is unusually voluminous. It consists of- about three thousand seven hundred folios and about fifty requests of facts to find. The learned referee in his opinion has disposed in detail of all the questions in controversy, and his findings of fact from the evidence and conclusions of law from the facts found seem to be clearly and concisely stated. .

After a- careful examination of all the evidence in the case we have reached the conclusion arrived at by the learned referee of the general doctrine, which falls within the case of Wyckoff v. Myers, 44 N. Y. 143 , that the architect’s certificate under such a contract is conclusive, in the absence of fraud or mistake, and does not -call for a different rule to be applied in this case.

Judgment affirmed on opinion of the referee.