The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1897-05-14
IN TIE SUPREME COURT OF THE HAWAIIAN
ISLANDS,
HIGH & co. 4. FRANCIS DUNN and E H F.
WOLTERS.
APPEAL FROM CIRCUIT JUDGE, FIRST CIRCUIT
MARCH TERN, 1897.

APPEAL CIRCUIT JUDGE, FIRST CIRCUIT.
SUBMITTED APRIL g. 1897. DECIDED APRIL p, 1897.
FREAR AND WHITING, j. AND CIRCUIT JUDGE CARTER IN
PLACE JUDD, CD, ABSENT
By the terms of building
satisfaction condition
The architect refused give
brought
collision.
plete remedy at law there remedy at ALL
OPINION OF THE COURT FREAR, J.
The compainants aege their bill that they entered
written with the defendant Woter to construct
building paid several instaments, the work
progressed the last payment be made after the acceptance
of the building by the architect and provided that in each of
the said the architect shall certify writing that all the
work upon the performance of which to become
due has been done his sasacon that compliments have
performed their part of the but that the defendant
Dunn the architect refuses to accept the building certify
the performance of the work provided the agreement
and that the defendant Woer refuses accept the building
pay the balance claimed be DUE and that refusing
they the defendants acting audulenty and cousivey
Companans pray that defendant Dunn be required deliver
them certificate that the building constructed according
the agreement and that the accepted also that
decree be made declaring that the plaintiffs entitled be
paid by the defendant Woers the balance claimed be due
under the contract.
defendants by way answer admit agreement and
the refusal give the certificate and accept the building but
deny performance by compliments according the
and also the allegations of fraud and collision They also sub
nit that the matters the are
tried and determined law and that the companan
entitled to relief in equity in respect thereto The Circuit
Judge dismissed the bill the ground that there plain,
adequate and complete remedy at law and the case comes here
appeal from this decree
The general the United States that in of
this kind the obtaining of the architects certificate ordinarily
condition precedent right of action but that either col
fusion with the fraud such gross mistake would
imply part architect will failure
certificate The following few of the
this effect Chsm Schipper, 81 n j. L. L;
Bachelor Kkbride, 90 Fed r. $780, Chicago, &c. Go.
Do.
Benty Daridson, IA Wis. 420; Hanley Walker 70
Mich England the much the except that
the fraud the architect alone be considered sufficient
failure to obtain the certificate But there be
doubt that in England we'll in America the fraudulent
collision of the architect with the sufficient
in actions law. Baerbg Vyse, Hurl & @. AZ;
L. R. G. P. Div 14S.
The argument for the companans that the procuring
of the certificate condition precedent the right of action
there be remedy law until the certificate obtained
and consequently that there is remedy at law there must
be remedy in equity. There to this The
first that shown by the above cited authorities there
a remedy law Compliments rely Miner a. Fietd,
Exch. 800 show that there remedy at law In that
case decision only length. may be that
the character of the peadng for Instance the failure
aege fraud collision in the ecaration had something
do with the conclusion of the court but however that may be-
if did intend the which counsel for
the companans contend did 60 the decision
titled weight in the light of the other English decisions
above cited all of which of later date.
The other argument for the compainants is
that there remedy law it would not follow
that there remedy equity There remedy only where
there right If the parties have by their contract made the
right dependent upon the obtaining of the certificate then
there right without the certificate and consequently
remedy-except in of colusion the ground that
party defense failure (to obtain the cert
fcate of which he the in of fraud the
ground that upon proper construction OF the contract
shown by its context and subject matter the failure to obtain
the certificate intended by the parties to the contract to
be defense only the architect should act good faith
The rule is the in equity at law An equity court
cannot than law make for the parties
different from that which they have made for them
selves See Scott Corporation Of Lirerpool De G. e
j. 1884, 357, $685. Sharpe San PaulO r. Co., L. r. Ch.
App Cas- 597, 612 613; Nichaels q. Wolf, 1876 Ill G8.
No has been adduced in which equity has assumed ur
dcton in of this kind In Bliss Smith, "a Beav
is true the head reads '1n building contracts