The true northerner. [volume] (Paw Paw, Mich.) 1855-1920, 1872-11-15
WHOLE NO 92O

contract, and the condition precedent TO
the right to recover.
The plaintiff also offered 10 show ex.
ira work and materials done and fur
nished on the request of the authorized
officers Of the district to the value of
$1,000; which was objected to and re-
Jected on the same ground above stated.
Also that Randall, the are itect re-
sided in Chicago, and was not present
when the building was COIL p,eted nor
until three months after the diyi ,ict took
possession of the building, whoa ,s ob.
lected to and excluded a. cons, :utipY
no sufficient excuse for the failure "a
procure the architects certificate.
Also in addition to and in conn.e.
ton with the facts previously stated.
that the defendant took possession Of the
building in September, 1870, and under
the direction of the school board exer.
cises were held which were called by
them dedication of the building, whore
by invitation OF the board public adj.
dresses were made cOngratulatinp Tho
people of the district who we present IN
large numbers On the completion Of the
building, etc, which was also objected
to and excluded.
And the circuit court nudge ehayooa
tbs jury that for the purpose Of tbis
trlai and in order that the question
might be passed upon by the Supreme
Court, he had ruled in substance that 70
entltle the plaintiff to receive he mns+
either show the certificate Of Mr.. Ran.
dali, the architect, or give some reason.
able excuse for its non production, and
no evidence OF that kind having been
offered they must ren der verdict IN
favor of the defendant
We think these rulings Of the airc,i.
judge do not correctly interpret shc
contract. The architect was not made
the sole inspector or Judge of the work
as 1t progressed, but on the contrary, az
he resided at a considerable distance
and superintendent was expected to be
and was in fact chosen by the distrie,
1t is reasonable inference that the an.
perIntendent vas expected to supervise
the work as 1T proceeded, and express
his dissent with any portion not in com
pllance with the specifications. His
powers were made by the contract AZ
broad as those of the architect; and there
Is no consent in the contract that his
decision should be subject 70 reversal
by his nominal superior.
This being so,we think whatever psss.
ed uuder his inspection as the work pro-
gressed and was III good faith approved
by him expressly or by implication was
not open to objection on the part of the
defendant afterwards; and tha: a. 70
so much Of the work at least, the plain
tiff had the same right to recover 4ha+
he would have if the proper certificate
had been furnished him. For j: coo,d
never be held to be the intention of .he
parties by any such words as are 3op.
tanned in such contract to give the ~.
perinendent power to re.examine has
own conclusions after the builder had
as be supposed completed the work, and
then to refuse certificate and preclude
the builder from receiving payment, ex.
ccpt upon the condition of making
changes and notifications in particulars
which had his approval, on being fully
known to him then were not objected
to when the work was being done. An
express agreement TO give bin this
power would be SO one-sided tina. it -
not for a moment to be supposed the
builder would enter into il. The cen
tract contcmplates the production Of the
certificate as the evidence Of the con
tractors right to pay; but it might be
waived, as 1t was in this case, to The ex
tent that payments were made, and the
plaintiff was entitled to it as of right az
to any further work which he had done
with the supcriutendent's approval up 10
the eighty five per cent to be covered
by the monthly estimates, and 80 the
full extent of the work that was COM
pleted under his direction.
If there were intentional departures
from the contract, either as to materials
or as TO the mode of construction, with
the approval or concurrence of the ga
perintendcnt, question nigh: arse
whether the contractor was entitled 20
greater or less compensation than if the
contract had been strictly complied
with, but this record does nor raise this
question.
Variences that may have been treated
BY both parties az immaterial a: The
time, should not afterwards be held to
be departures from the contract; and
what was then regarded as substantial
with its terms, should BE-
held performance on law.
We are not informed what objections
were made by tho architect, but except
as they may have been confined to those
particulars which has the approval
neither of himself nor Of the superlD-
tendout, it is plain, We think, that the
contractor was under no obligations to
give heed to them, and that his right to
receive could in any respect be limited
n,, .L -. De- &c tbora Vvara ipfanttnpal