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the exercise of the right so reserved. As most building contracts now contain stipulations, by which the owner is empowered to terminate the contract under certain conditions, no claim for damages can be made for revocation made in accordance with these conditions. Moreover, in so serious a matter as a suit for damages for breach of a contract, it is necessary to be sure, not only that the conduct complained of is not expressly authorized by the contract, but that it is intentional and unmistakable; and this is particularly advisable where it is sought to prove that one party prevented performance by the other. Many decisions uphold the rule that "It is not every partial neglect or refusal to comply with some of the terms of a contract by one party which will entitle the other to abandon the contract at once. In order to justify an abandonment of it, the failure of the opposite party must be a total one; the object of the contract must have been defeated or rendered unattainable by his misconduct or default."

Where a contract has been declared forfeited, under the stipulations of the agreement, it may be reinstated by mutual consent or implication, and the parties will then no longer be governed by the original revocation. In a New York case, the plaintiff, by an oral contract, agreed to erect for the defendant a building, in accordance with certain plans and specifications. The defendant, when the building was nearly finished, employed an architect to examine the work. The architect made a memorandum of defects and of the work that should be done to remedy them. This was accepted, and agreed to by the parties, and the plaintiff began work under the new agreement. The defendant then refused to allow the plaintiff to finish the building as required by the architect, and the work was stopped. The builder sued for payment for the work done, notwithstanding its agreed defects; and the Court of Appeals held that the new agreement was a waiver of forfeiture by reason of the non-performance of the old contract, and that the plaintiff was entitled to recover.

It occasionally happens that a contract is declared forfeited

Selby vs. Hutchinson, 4 Gilm. 319. Young vs. Preston, 4 Cranch, 239.

Andrews vs. Montgomery, 19 Johns. 205.

Forfeited Contract May be Reinstated.

Fallon vs.
Lawler,

102 N. Y. 228.

Culbertson vs.
Ellis,

6 McLean, 248.

P. W. & B. R. R.

vs.

Howard,

13 How. 307.

Adams vs. Boston Iron Co.,

10 Gray, 495.

through mistake or misconception. In such cases, however indignant the contractor may be, he has no claim for damages against the other party, if the mistake was an innocent one. In two cases, in the United States courts, it has been decided that "Where right of forfeiture is reserved in the contract, a forfeiture declared under it, through mistake of facts, does not authorize damages, unless the person upon whose judgment the forfeiture was to be made acted fraudulently."

Another case, which throws some light on the subject, is found in the Massachusetts reports. One Gray, as Treasurer of a company, contracted for four engines, to be set up in the company's works. The engines were nearly finished, when Gray himself made an assignment in bankruptcy. The engine-builders, fearing that Gray's company might be involved in his failure, carried away the portable parts of the engines, and gave notice that they would not complete their contract without further security. A new Treasurer was appointed, who, when he was asked whether the company wished the builders to go on and finish the engines, said that the corporation was not bound by the contract. In a suit by the enginebuilders against the company, it was held that the agreement was discharged by the refusal of the builders to go on with the work, and could not be held binding on the company, without proof of some subsequent agreement by them that it should be completed.

WE

CHAPTER XXV.

COMPLETION, ACCEPTANCE, DELAY AND FORFEITURE.

E now come to four matters which give more trouble, perhaps, than any others connected with the settlement of building contracts. When a contract shall be considered to be completed, what constitutes an acceptance, when a contractor shall be held responsible for delay in completing his work, and what shall be the penalty inflicted upon him for such delay, are all questions which have frequently to be solved by the courts. As it happens, however, the courts are practically in accord in their treatment of them, and a study of the decisions which have been made already might save many owner or contractor, who feels himself aggrieved, from spending his time and money in trying to gain for himself a decision at variance with principles so well established.

an

In most building contracts, it is stipulated that the work specified in the agreement must not only be completed, but completed to the satisfaction of some person indicated, and, in many cases, accepted by the owner, before payment is due; and the agreement also generally provides that, if the original contractor shall neglect or refuse, for a certain time, to do the work as agreed, the owner shall be at liberty to notify him that the contract is at an end, and to employ other persons to finish the work, and to charge the cost of completing it in this way to the account of the original contractor; and as, in

Bigler vs.
Mayor,

9 Hun 253.

Glacius vs.
Black,

50 N. Y. 145.

Cook Co. vs. Harms, 108 Ill. 151.

Louisville Ry.
Co. vs.
Donnegan,
111 Ind. 179.

Glacius vs.
Black,

50 N. Y. 145.

Van Buskirk

vs.

Murden,

22 Ill. 446.

practice, all these points generally come up in any particular case, it will be convenient to consider them together.

In most cases, where an architect is employed, it is agreed by both parties that his certificate shall be the sole and sufficient evidence of the completion of the work as contracted for. It has been shown above, by many examples, that, where such an agreement has been made between the parties, it is almost indispensable that the certificate should be procured, before the builder can claim that he has completed his contract; but the rule is not absolutely without exception. Unless the contract provides, as it often does, that the architect's certificate shall be binding and conclusive upon both parties, it may be regarded, as it has been in New York, as simply prima facie evidence, which may be controverted by other evidence. In any case, whether the contract makes the certificate final or not, the courts will set it aside if it is shown to have been fraudulently given, and will release the builder from the necessity of producing it, if it appears that it is maliciously or fraudulently withheld. In Illinois, it has even been decided that a court may enter into the mental attitude of the architect who makes the certificate, and, if it finds that his decision was not based on his judgment, but on his arbitrary will, and neglected important facts, so as to justify a suspicion that he intended to oppress the builder, that it may set it aside, even though the contract expressly provides that it shall be final and conclusive on the parties. It is, moreover, to be remarked that, under any circumstances, the contract is paramount, even to the architect, and a contract requiring work to be done in a good and workmanlike manner, and appointing an architect with power to accept or reject it, does not authorize the architect to accept work not done according to the contract.

This is an important point, which is often lost sight of by builders and owners, as well as architects; and it is well settled that acceptance of work done under a contract, not only by the architect, but by the owner, does not waive defects in it. It is true that if there are obvious defects, and the

owner, notwithstanding these, accepts and pays for the work, a presumption is raised that he intended to waive the objection that he might have made to them; but there is no presumption of the kind in the case of concealed defects; and it is well established that "notwithstanding acceptance, virtual or formal, unless expressly made in full discharge of the contract, if the work or materials are not as contracted for, the owner may recoup damages sustained in consequence."

One of the most instructive cases in which this principle is involved is that of Trustees vs. Bradfield, 30 Georgia, 1. The Trustees of the Munroe Female University contracted with the defendants to repair and remodel one of their buildings; to "remove certain walls, and put in such pillars as might be necessary to support the ceiling," and to do this and other work "in a neat and workmanlike style." The contract was to be completed in January, 1853, and was substantially completed about that time, and the building was occupied by the plaintiffs. It was proved that the plaintiffs were present during the execution of the work, and made no objection to anything that was done. In July, 1854, eighteen months after the completion of the building, a girder gave way in the chapel, allowing a part of the ceiling to fall, so that it had to be all taken down. Three days before the ceiling fell, the roof had been examined, and found leaky, and it was testified that the leakage increased the weight on the girder, and that "this was the cause of the fall." The girder, which was of chestnut, was found to be brashy and knotty, and there was expert evidence to the effect that it ought to have been supported by two more posts. It cost $530 to repair the damage, and the Trustees sued the contractors for this amount, with damages, placing their claim at $1,000. Two juries decided in favor of the defendants, but the Supreme Court reversed the decision, saying, "That the plaintiffs received the work, "and paid for it, does not affect their right to recover in the "slightest degree; it is not a circumstance to be considered "against that right. They are entitled to recover, unless

Estep vs. Fenton, 66 Ill. 467. Trustees vs. Bradfield, 30 Geo. 1.

Korf vs. Lull. 70 Ill. 420.

Trustees 8. Bradfield, 30 Geo. 1.

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