[No. 13960.

Department One.

July 25, 1917.]

#### August Weiffenbach, *as Seattle Cornice Works, Respondent,*v. Burns Lyman Smith *et al., Appellants.**1*

Contracts—Building Contracts—Disputes — Ambiguity — Province of Umpire. A provision in a building contract that all disputes shall be settled by the architect, whose decision shall be final, has no application, where two sets of specifications were furnished for the installation of ventilators, one for the masonry providing for galvanized iron, and the other for carpentry calling for copper, and the principal contractor, upon inquiry, instructed the subcontractor to bid on galvanized iron, and during the progress of the work, insisted upon copper and agreed to pay for the same as an extra; since the dispute was over an ambiguity in the contract which the parties could and did settle themselves before contracting.

Same—Building Contracts—Specifications—Extras. In such a case, the specifications requiring copper manufactured by the R. Co. “and not elsewhere,” do not apply, since the contract was made with reference to galvanized iron in the other set of specifications, and the principal contractor’s agreement to pay for copper manufactured by the subcontractor as an extra puts the burden upon him of settling the dispute with the owner at his own cost.

Appeal from a judgment of the superior court for King county, George H.'Walker, Judge *pro tempore,*entered July 11, 1916, in favor of the plaintiff, in an action on contract, tried to the court.

Affirmed.

*George R. Biddle*and *H. L. Morrison,*for appellants.

*F. C. Kapp,*for respondent.

1

Reported In 166 Pac. 613.

Chadwick, J.

The respondent was invited to bid on the installation of certain ventilators and flashings for the L. C. Smith Building, Seattle, Washington. He was given two sets of specifications; one for masonry, and one for carpentry work. The specifications were prepared by architects having offices in Syracuse, in the state of New York. The set of specifications for masonry provided that the flashings and *392ventilators should be of galvanized iron of the Burt type. The set of specifications for carpentry provided that the flashings and ventilators should be of copper, and of a kind manufactured by the Royal Ventilator Company of Philadelphia, Pennsylvania.

The appellant, The Whitney Company, had its chief office in New York City. The respondent inquired of its representative having charge of its work on the Smith Building as to the meaning of the specifications, and which type of ventilators he should bid on, and was told by him to bid upon galvanized iron. The respondent accordingly filed a bid in which he stated that his bid was for galvanized iron construction. In the progress of the work, the representative of the owner objected to the galvanized iron and insisted that the ventilators and flashings should be of copper. The respondent testifies that it was then understood by and between the representative of the principal contractor and himself that he should proceed to put in copper construction of his own manufacture and that the same would be paid for as extra work. Ventilators of the Royal Ventilator type, but manufactured by the respondent, were installed. The work was rej ected by the agent of the owner as not being in accord with the provisions in the specifications that the ventilators should be manufactured by the Royal Ventilator Company of Philadelphia, Pennsylvania. The appellants refused to pay for the work done by respondent. Upon suit brought, a judgment was rendered in the court below for the amount of his demand.

It is insisted on the part of the owner and principal contractor that the difference which has arisen between the parties comes within the provision which is common to all specifications and contracts, that such disputes must be referred to the architect for his decision, and which, being made, is final.

This court, in common with many other courts, has held that, where parties contract, they may agree that disputes arising as to the meaning of plans and specifications may be *393referred to an architect, and his decision shall be final; yet that rule has no room for application here. The dispute out of which this controversy arises arose prior to the time any contract was entered into. The difficulty was understood by the parties; they settled it for themselves; and contracted with reference to it. An architect can settle disputes arising during the progress of the work, but cannot vary, or make, or unmake contracts which are not subj ect to construction.

To apply the rule contended for, would work positive injustice, for the controversy comes not out of a dispute but out of an agreement. The two sets of specifications were prepared by the architects and put in the hands of the respondent by the principal contractor. Respondent had then assumed no relation whatever to the owner. With the two sets of specifications before him, he did the natural thing. He asked the principal contractor, with whom he was dealing, which set should control his bid on the ventilators and flashings. He had a right to assume that all differences and ambiguities arising in or out of the specifications had been settled by the principal contractor when it made its bid, and to rely upon its assurance. The law ought to presume, as between a principal contractor and a subcontractor, that the principal contractor knows the true intent and meaning of the specifications and has contracted with reference thereto. If this be sound, it would follow that the principal contractor should be held to the burden of settling, at his own cost, any dispute subsequently arising between the principal contractor and the owner or architect.

That part of the carpentry specifications upon which appellant relies is, “Ventilators shall be manufactured by The Royal Ventilator Company of Philadelphia, Pa., instead of those elsewhere specified.” Importance is attached to the words “instead of those elsewhere specified,” but we think it is not the legal privilege of the appellant to isolate this phrase. The words are no more prominent in the one set of specifications than are the words, “All ventilators shall be *394of galvanized iron of the Burt type,” in the other set of specifications.

Respondent made definite inquiry, and appellant should be bound by the answer which it made and upon which respondent, by the very written terms of his bid, fixed a price for his labor and material.

The words “instead of those elsewhere specified” should not be held to mean anything other than elsewhere specified in *this*set of specifications. Otherwise, a set of specifications being one of a number would be a trap for the unwary and a menace which even ordinary care and prudence could not guard against. A subcontractor would be the victim of the inefficiency, stupidity, or inexcusable carelessness of the architect, for the architect, in turn, could say, “It is true that you are the victim of my fault, but I am authorized by your contract to metamorphose my fault into a ‘dispute’ and compel you to answer for it.”

The law, at its best, works much injustice, but it should never be so unless the injustice suffered by the individual is necessary—a vicarious sacrifice, as it were—for the common good.

Settlement by the parties, before signing, of ambiguities in a building contract has been sustained as within their right to control without bringing themselves within the umpire clause of the building contract. *Shepard*& *Sons v. First Nat. Bank of Wilkes-Barre,*232 Pa. 649, 81 Atl. 715; *Snead & Co. Iron Works v. Merchants’ Loan & Trust Co.,*225 Ill. 442, 80 N. E. 237, 9 L. R. A. (N. S.) 1001; *Morgan v. Murdough,*216 Mass. 502, 104 N. E. 455.

We find no error.

Affirmed.

Ellis, C. J., Morris, and Main, JJ., concur.