#### Arthur T. Fowler, Plaintiff-Appellant, *v.*James C. Bushby, Defendant-Respondent.

(Supreme Court, Appellate Term,

November, 1910.)

Building and constructiou contracts: In general — Interpretation in general: Submission of questions of performance to third person ' — Scope of issues to be decided by architect or third person.

Contracts — Interpretation of contract — General rules of interpretation — Contracts executed in duplicate.

Where a building contract is drawn upon a printed form and the word “ specifications ” in some of the places where it occurs has been erased, though it remains in other places; and, where it appears that there were no specifications in the proper sense of the term but a plan only, an ambiguity arises; and a duplicate original of the contract in which the word *“*specifications ” has been stricken out in all the places where it occurs is admissible for the purpose of showing the intention of the parties.

The word “ specifications ” will not he interpreted as intending the statement filed with the tenement house department by the architect which was not shown to the builder, nor will the contract he construed to extend to slate floor and base for the toilet room which were mentioned in such statement hut were not shown on the plan upon which the building contract was based.

A provision in the contract that the second payment shall he made when a certificate of the tenement house department is secured fixes the time of payment hut does not oblige the plaintiff to do work not covered by his contract in order to satisfy other demands of the department.

A provision that the architect’s decision as to the true construction and meaning of the drawings shall he final does not extend to his opinion upon the proper construction of the contract.'

*342Appeal by the plaintiff from a judgment in favor of the defendant, entered in the Municipal Court of the city of New York, borough of Manhattan,'fifth district.

Edward M. & Paul Grout (Dean Potter, of counsel), for appellant.

James C. Bushby, respondent, in person.

Page, J.

This action was brought to recover for certain extra work which plaintiff claims to have done upon a building owned by defendant. There was -practically no dispute as to the facts.

The defendant, desiring to make certain alterations' in the premises, employed David M. Ach, an architect, who' prepared plans; a blue print of these plans was submitted to the plaintiff, who thereupon gave an estimate, and a written contract was entered into between the parties hereto.

It is conceded that the plan referred to in the contract was the blue print theretofore submitted to plaintiff. It is also undisputed -that these plans did n-ot show the slate floor and base for the toilet room, and that plaintiff did not take these matters into consideration when he entered into the contract. Defendant claims that this work was nevertheless covered by the contract. First, because they appear in the statement filed with the tenement-house department by Ach. Second, because the contract provides that the second payment shal-l be made when dismissal is secured, which relates to a certificate of the tenement-house department that defendant claims plaintiff was to obtain and, hence, w-as boxind to do whatever was required' to that end. Third, because the architect has expressed his Opinion that defendant was not bound to pay plaintiff for the work. The learned justice below found for the defendant. Defendant’s first claim is based upon the word *“*specifications ” which appears in some parts of his copy of the contract, but which was stricken out of plaintiff’s copy. Defendant contends that these specifications referred to the statements filed with the tenement-house department, which, in the “ Plumbing *343and Drainage slip” form 121a., contained this statement: “ 18. How will floors of new water-closet compartment be made water proof ? State material. Slate Foor. Will there be water proof base six inches high above the floor extending entirely around such compartment? Yes. State of what material. Slate.” The word *“*specifications,” when used in a contract for construction or alteration of buildings, has a well-defined and settled meaning. It is' a detailed statement of each particular of the work to be done, usually prepared by the architect in amplification of the details of drawings or plans. That this was the meaning here is clear from its being used in conjunction with the word “ drawings.” The defendant’s copy of the contract refers to the drawings and specifications “ prepared by David H. Ach, architect, which drawings and specifications are identified by the signatures of the parties hereto and become a part of this contract.” It is conceded that no specifications, as the word is commonly understood, were prepared; and nothing but the drawing prepared by Ach had been submitted to plaintiff. The statements filed by Ach with the tenement-house department were not. shown to him, nor did he know anything about them. It is clear, therefore, that it was not to them that the contract referred. The contract was on a printed form. In defendant’s copy, which was put in evidence, the words “ and specifications ” appear four times; where it relates to the obligations of the parties thereto in two places it is stricken out. Plaintiff offered his copy which had these words stricken out in all four places. Objection was made “ on the ground that said copy contains an erasure that does not appear in the copy marked-defendant’s exhibit 1.” This objection was sustained. This ruling was erroneous. The striking out of these words in two of the places in defendant’s exhibit 1, and leaving them in, in two places, created an ambiguity therein, which made competent the examination of any contemporaneous document that would tend to make clear the real contract of the parties, and certainly, under such circumstances, the duplicate original was the best evidence. When that is consulted, it becomes evident that it was the intention of the parties to eliminate those words *344entirely from the contract. This renders the whole transaction harmonious. The contract referred only to the drawings, and, concededly, only the drawings were .prepared and before the parties at the time of the making of the contract. *Second.*The provision in the contract that the second payment was to be made when dismissal is secured fixes the time of payment, but is not an obligation on the plaintiff to do work not covered by his contract in order to satisfy other demands of the department; and, as the dismissal had been secured prior to the bringing of this action, .it has no bearing on this case. *Third.*The defendant contends that, because the architect has expressed his opinion that defendant was not bound to pay for the work, he is exonerated. The contract, article II, to which we are referred by the defendant to sustain this contention, is .as follows: *“*That his ” (the architect’s) “ decision as to the true construction and meaning of the drawings shall be final.” We now turn to the architect’s letter: “ When Mr. Fowler and Hughes Bros, figured on the work in the house, they estimated on the incomplete plans or rather the plans before they were presented, to the tenement-house department. When the plans were filed it was necessary to -specify that the floor would be waterproofed, and there was one of two other orders which were received from the tenement-house department after the plans were filed. Of course, Mr. Fowler did not figure on these items and has been put to some expense. Your contract, however; calls for the furnishing of the approval of the Tenement House Department, and, while you are in no way bound to pay Mr. Fowler extra on this work,” etc. The only part of this letter that deals with the question as to which the architect’s decision was to be final under the contract is that which relates to “ the true construction and meaning of the drawings;” and as to that the decision is against the defendant, for he distinctly says that these matters were not •included in the drawings and that plaintiff did not figure on them. The remaining portion of the letter deals with a construction of the contract and .amounts to nothing more than the gratuitous opinion of a layman, having no force or effect whatever. As to defendant’s final contention that the *345check for the final payment was accepted “ in full settlement ” and, having been given after the discussion between plaintiff and himself, constitutes an accord and satisfaction, very little need he said. In his brief he states that this check was indorsed by the plaintiff *“*in full settlement.” Turning to the check itself we find the indorsement, in defendant’s handwriting, “ In full settlement of contract of Dec. 3, 1909,” which shows that it was not given in full settlement of the disputed extra work, hut only as to the written contract.

It is clear from the entire case that the extra work, to recover for which this action was brought, was not in the minds of the parties at the time the contract was made. It was not plaintiff’s duty to examine the records of the tenement-house department to discover whether the defendant contemplated doing other work. It was the duty of defendant tó have any work not originally within the contemplation of the parties inserted in the contract or made the subject of a new contract.

The plaintiff fully performed his contract and received a certificate to that effect from the architect, and on the cer- • tifieate defendant paid $175 under the terms of his contract. Defendant is an attorney and must have realized the significance of this payment on his part.

The judgment should he reversed and a new trial ordered, •with costs to appellant to abide the event.

Seabury and Bijur, JJ., concur.

Judgment reversed and new trial ordered.