of the contract, without the evidence of the certificate, and that payment was due; and in a New York case, even where the architect had refused to give a final certificate, by the direction, as he said, of the owner, the fact that the owner had moved into his house, and had given other reasons for believing that he considered the contract as completed, was held to constitute a waiver of the condition requiring the architect's certificate, so that the builder was entitled to recover payment without it. It would be, however, quite incorrect to suppose that mere occupancy of a building constituted a waiver of any of the requirements of an ordinary contract. Many examples will be given hereafter to show that this is not the case; and the implied waiver of the certificate in Smith vs. Alker depended upon circumstances additional to simple occupancy. Where certificates for payments on account are to be given, as well as the final certificate, it has been decided that if interim certificates in a form not strictly according to the contract have been accepted without question, and payments made on them, a final certificate in a similar form is valid; but where the interim certificates have not been given at all, but payments have been made without them, it has been held that this did not waive the necessity for procuring the final certificate, or set aside one which had been procured, but which was not in accordance with the contractor's wishes. Smith vs. 102 N. Y. 87. Mere Occupancy not Waiver. Bloodgood vs. Mercer vs. 5 Del. Ch. 270. Barton vs. Hermann, 11 Abb. Pr. N. S. 378. Relation Between Owner and Builder Fixed by the Contract. Written, Oral and Implied Contracts. THE CHAPTER XV. THE CONTRACT. HE relation between the builder and the owner is formed exclusively by the contract. This alone defines what the builder is to do for his employer, and how much, and in what manner, and at what time, he shall be paid for doing it. A contract may be a very informal affair, and may even be implied from certain actions of one party or the other; but, without a contract of some kind, neither party is obliged to do anything for the other. Contracts, in general, are of three sorts, written, oral, or parol, as they are sometimes called, and implied. In the first sort, each party signs a writing, containing what both agree to do; in the second sort, the parties verbally agree what one shall do, and the other pay for the service; and in the third sort, one party asks the other to do something, or, after the thing has been done without his asking, accepts the benefit of it; and a promise to pay a reasonable price for what has been done is thereby implied. Practically, most contracts combine the features of at least two of the sorts. Few written contracts, and still fewer oral ones, are so full as to describe everything that each party is to do, and some of the provisions which the parties really intended have to be implied from various circumstances, such as local custom, previous transactions between the parties, legal maxims laid down for the purpose of meeting such cases, or many other things. Of the three sorts, the written contract is commonly supposed to be the most binding. In reality, it is no more binding than any of the others, but, as there can be no dispute about terms laid down in black and white, and signed by both parties, while two persons will rarely agree as to what was said in making an oral contract, it is usually the most easily enforced. Moreover, as there is a certain solemnity attached to the signing and delivery of a written contract, it is always presumed in law that the written document is the final quintessence and conclusion of all the oral negotiations which have preceded it, and expresses the matured agreement and understanding between the parties. For this reason, as has been before mentioned, (Page 10), testimony as to oral conversations and agreements, which contradict a subsequent written contract, or even a very informal written memorandum of a contract, is generally excluded by courts. Innumerable examples to illustrate this point can be found in the law reports, as nothing is more common than for people, when brought to account for not fulfilling their agreements, to endeavor, unsuccessfully, to introduce evidence to show that they did not really mean what they signed their names to, but something else. to The contract between the builder and the owner may be, in some cases, a contract for employment simply, in which the mechanic works by the day or hour, and the owner either agrees to pay him certain wages, or promises, by implication, pay him a reasonable compensation; or the agreement may be for the builder to furnish materials as they are wanted, and engage men, who work by the day at whatever the owner may wish them to do, and are paid for their time by the owner, although usually indirectly through the builder, who charges a profit on the wages actually paid, to compensate him for his trouble in hiring and supervising the men. A contract of this kind differs materially, in the method of enforcement, and the responsibility which it imposes on the parties, from one in which the builder agrees to do a certain work for a fixed sum; but details on this point will be given later. It was said above that if a person does a service for another, Written Contracts. Contracts for Employment. Implied Contracts. Blount vs. 99 N. C. 93. without being asked to do it, and the person for whom the thing was done accepts the benefit of it, a contract for doing the work is implied, under which the one who derives benefit is bound to pay a reasonable price for the work. Such an implied contract would be subject to modification by any more definite agreement under which the work might have been done. For example, where a written contract provides that extra work shall not be paid for unless ordered in writing, the owner is not obliged to pay for extra work not so ordered, even though he may derive benefit from it; and there are various legal presumptions under which a person is considered as having intended to render services without expectation of being paid; as where children work for their parents; or a wife for her husband; or where persons employed work occasionally overtime. Cases of this sort are often difficult to decide. On the one hand, is the maxim of law that no one can make another debtor to him against his will; and on the other, is the natural feeling that a person who innocently does another a service should receive what the service is worth to the one for whom it was done, even though he may not have asked for it. A good case for illustration is that of a plumber in North Carolina, who made a sub-contract with a builder for the plumbing of a house. The owner discharged the builder for drunkenness, before the plumbing work was done. The plumber went on with his work, and, when it was done, sued the owner for the price. The owner was proved to have seen the work going on, and to have given some directions about it; and, although it seemed that money enough to pay the plumber, under his sub-contract, had been paid over to the builder, the Supreme Court held that the owner might, if the jury should think that the circumstances warranted it, be required to pay the plumber at least the value of the work done by him after the discharge of the builder, on the ground that "Where one stands by in silence, "and sees work done or materials furnished for work done "upon premises belonging to him, of which he accepts the "benefit, a promise to pay the value thereof may be inferred." CHAPTER XVI. FORMAL CONTRACTS. S distinguished from implied contracts, a formal contract may be defined as consisting of a proposal and acceptance. The proposal may be made by one party, and accepted by the other, by separate acts, or the agreement as to what each is to do may be signed by both, this constituting virtually a simultaneous proposal on the one hand, and acceptance on the other, of all the conditions of the agreement. Where it is desired to make a contract by means of a proposal and its acceptance, certain precautions must be observed by both parties. In all cases, the party making the proposal must be careful to have it include everything that he means to insist upon, for the reason that its acceptance by the other party binds both to its exact terms, without variation or reservation of any kind; and a person who, having received a proposal which seems to him favorable, desires to take advantage of it, must accept it at once, and unconditionally. Just how quickly the acceptance must follow the proposal, and how much opportunity shall be given to the one making the proposal to retract or modify it, are questions over which courts have spent much time. Something depends upon the circumstances attending the offer, and what would be a reasonable time in one case might not be so in another. A man once wrote an offer to engage a person as trimmer in his millinery shop, asking for a prompt reply. The letter was received by the one to whom it was addressed, on March 22. Proposal and Accept ance. How Soon Proposal Must be Accepted. |
