Lyon, J.
The provisions of the written contract between the testator and the firm of Berry, Gilbert & Co., to the effect that the former should not be required to make any payment on account of the stonework until the firm should produce to him the certificate of the superintendent of the hotel building, [225]*225Mr. Birdsall, containing the statements specified in such contract, are valid provisions, and binding upon the plaintiffs, unless they can show some legal excuse for not producing such certificate. All of the adjudged cases agree that if the certificate be wrongfully withheld by collusion between the owner of the building and the superintendent, the absence of the certificate is no bar to a recovery under the contract for the materials furnished or work performed. Indeed, this rule is so manifestly just and reasonable that it • would be accepted at once were there no adjudications on the subject. Many of the cases hold that nothing but fraudulent collusion between such owner and superintendent wild excuse the production of the certificate. But in Hudson v. McCartney, 33 Wis., 331, we had occasion to consider this whole subject, and we were of the opinion that the production of the certificate may be 'excused by proof that it is withheld by the fraud or mistake of the superintendent, even though there be no collusion between the latter and the owner of the building.
Eurther, there can be no doubt that it is competent for the parties to the contract, respectively, to waive the performance of any of the conditions or stipulations of the contract. It is claimed that, in this case, the testator waived the production of the certificate of Birdsall, the superintendent, by paying large sums on account of the stone work without first requiring such certificate to be produced, and by failing afterwards to demand or require such certificate for the ..residue of the work. It seems to us that the position is well taken. Without the certificate of Birdsall stipulated for in the contract, the testator paid the plaintiffs more than fifty per cent, of the contract price of the stone wTork furnished in 1867 (and about eight-elevenths of the whole was furnished in that year), thus waiving the certificate so far as that portion of the work was concerned. We think that if he intended to assert his right to a certificate in respect to the balance of the work, he should have notified the plaintiffs of such intention, and should have placed his refusal [226]*226to pay for such balance on the ground that no certificate had been furnished. Railing to do so, it must he held that he waived the production of the certificate.
We think, further, that there was an effectual waiver by the testator, of all right to recover damages for the failure of Berry, Gilbert & Co., or of the plaintiffs,. to perform any of the conditions of their contract. The contract evidently contemplated that if any claim or deduction for damages for the nonfulfillment thereof by that firm should be made, the same should be determined by the superintendent from time to time.as the work progressed. This seems to be the significance of the provision that such damages should be deducted from the next regular payment, etc. We find nothing in the contract which permitted the alleged damages to be claimed for the first time, and the amount thereof determined in the lump, by the superintendent, a year or more after the work was furnished, and after an action had been commenced to recover the unpaid balance therefor. Without assessing, or even claiming, any damages for breaches of the contract, and after the alleged delay in furnishing the stonework which caused most of the damages complained of, the superintendent gave the plaintiffs a certificate of the amount ■and value of the different kinds of stone work furnished under the contract. The certificate does not state, in terms, that the work is to the satisfaction of the superintendent, but it fixes the value thereof at the contract price, and states nó objection thereto. This, we think, is equivalent to a statement that the work was done to his satisfaction. That the damages claimed by reason of delay and of defective material and workmanship, in respect to the stone work furnished in 1867, are waived by the payment of more than fifty per cent, of the contract price for such work without objection, and by the giving of such certificate, cannot, we think, be successfully denied. So'far as the damages are concerned for anj’ failure by the plaintiffs in 1868 to perform their contract, such damages are comparative[227]*227ly trifling. There is no complaint of any unnecessary delay by the plaintiffs during that year; and if the stone delivered in 1868 was defective, or the work improperly done, the defective material or work should have been rejected, or, if accepted, an assessment of damages on account thereof should have been made by the superintendent within a reasonable time.
Our conclusion on this branch of the case is, that the plaintiffs should be allowed the full contract price of the stone work furnished the testator pursuant to the contract; the amount of which was correctly found by the referee to be the sum of $5,546.91.
But we encounter an insuperable obstacle to the plaintiffs’ right to recover in this action the unpaid balance for such stone work. The contract is, that fifty per cent, of the price thereof should be paid by three notes of equal amounts, to be given therefor by the testator, due in one, two and three years respectively. There is no testimony tending to show that these notes were ever demanded of the testator. This action was commenced before either of them would have been due, had they been given in accordance with the terms of the contract. More than fifty per cent, of the contract price for the work was paid by the testator, in cash, board, etc., before this action was commenced, so that the whole unpaid balance is included in the stipulation to give the notes. It is claimed by the learned counsel for the plaintiffs, that it was not incumbent on the latter to demand the notes, but that it was the duty of the testator to tender them. The cases cited to that proposition fail to sustain it. In all of them the notes were duly demanded, and in nearly all of them the necessity of such demand in order to put the opposite party in default is clearly and distinctly recognized. Such demand, and a refusal by the testator to give the notes, were doubtless essential in this case to the plaintiffs’ right of action. It was competent, probably, for the plaintiffs to waive the giving of the notes, for that was a stipulation for their benefit alone; and in- that case they [228]*228could have maintained an action at the end of a year from the completion of their contract, for the installment of the- unpaid balance then due. But they did not wait a year. They delivered the last stone July 9th, 1868, and commenced this action July 7th, 1869. We see no escape from the conclusion that the action was prematurely brought. We think that the referee should have so determined, and it was not necessary that he should decide the merits of the action. He omitted to find the matter in abatement of the action, but determined the merits thereof.
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Lyon, J.
The provisions of the written contract between the testator and the firm of Berry, Gilbert & Co., to the effect that the former should not be required to make any payment on account of the stonework until the firm should produce to him the certificate of the superintendent of the hotel building, [225]*225Mr. Birdsall, containing the statements specified in such contract, are valid provisions, and binding upon the plaintiffs, unless they can show some legal excuse for not producing such certificate. All of the adjudged cases agree that if the certificate be wrongfully withheld by collusion between the owner of the building and the superintendent, the absence of the certificate is no bar to a recovery under the contract for the materials furnished or work performed. Indeed, this rule is so manifestly just and reasonable that it • would be accepted at once were there no adjudications on the subject. Many of the cases hold that nothing but fraudulent collusion between such owner and superintendent wild excuse the production of the certificate. But in Hudson v. McCartney, 33 Wis., 331, we had occasion to consider this whole subject, and we were of the opinion that the production of the certificate may be 'excused by proof that it is withheld by the fraud or mistake of the superintendent, even though there be no collusion between the latter and the owner of the building.
Eurther, there can be no doubt that it is competent for the parties to the contract, respectively, to waive the performance of any of the conditions or stipulations of the contract. It is claimed that, in this case, the testator waived the production of the certificate of Birdsall, the superintendent, by paying large sums on account of the stone work without first requiring such certificate to be produced, and by failing afterwards to demand or require such certificate for the ..residue of the work. It seems to us that the position is well taken. Without the certificate of Birdsall stipulated for in the contract, the testator paid the plaintiffs more than fifty per cent, of the contract price of the stone wTork furnished in 1867 (and about eight-elevenths of the whole was furnished in that year), thus waiving the certificate so far as that portion of the work was concerned. We think that if he intended to assert his right to a certificate in respect to the balance of the work, he should have notified the plaintiffs of such intention, and should have placed his refusal [226]*226to pay for such balance on the ground that no certificate had been furnished. Railing to do so, it must he held that he waived the production of the certificate.
We think, further, that there was an effectual waiver by the testator, of all right to recover damages for the failure of Berry, Gilbert & Co., or of the plaintiffs,. to perform any of the conditions of their contract. The contract evidently contemplated that if any claim or deduction for damages for the nonfulfillment thereof by that firm should be made, the same should be determined by the superintendent from time to time.as the work progressed. This seems to be the significance of the provision that such damages should be deducted from the next regular payment, etc. We find nothing in the contract which permitted the alleged damages to be claimed for the first time, and the amount thereof determined in the lump, by the superintendent, a year or more after the work was furnished, and after an action had been commenced to recover the unpaid balance therefor. Without assessing, or even claiming, any damages for breaches of the contract, and after the alleged delay in furnishing the stonework which caused most of the damages complained of, the superintendent gave the plaintiffs a certificate of the amount ■and value of the different kinds of stone work furnished under the contract. The certificate does not state, in terms, that the work is to the satisfaction of the superintendent, but it fixes the value thereof at the contract price, and states nó objection thereto. This, we think, is equivalent to a statement that the work was done to his satisfaction. That the damages claimed by reason of delay and of defective material and workmanship, in respect to the stone work furnished in 1867, are waived by the payment of more than fifty per cent, of the contract price for such work without objection, and by the giving of such certificate, cannot, we think, be successfully denied. So'far as the damages are concerned for anj’ failure by the plaintiffs in 1868 to perform their contract, such damages are comparative[227]*227ly trifling. There is no complaint of any unnecessary delay by the plaintiffs during that year; and if the stone delivered in 1868 was defective, or the work improperly done, the defective material or work should have been rejected, or, if accepted, an assessment of damages on account thereof should have been made by the superintendent within a reasonable time.
Our conclusion on this branch of the case is, that the plaintiffs should be allowed the full contract price of the stone work furnished the testator pursuant to the contract; the amount of which was correctly found by the referee to be the sum of $5,546.91.
But we encounter an insuperable obstacle to the plaintiffs’ right to recover in this action the unpaid balance for such stone work. The contract is, that fifty per cent, of the price thereof should be paid by three notes of equal amounts, to be given therefor by the testator, due in one, two and three years respectively. There is no testimony tending to show that these notes were ever demanded of the testator. This action was commenced before either of them would have been due, had they been given in accordance with the terms of the contract. More than fifty per cent, of the contract price for the work was paid by the testator, in cash, board, etc., before this action was commenced, so that the whole unpaid balance is included in the stipulation to give the notes. It is claimed by the learned counsel for the plaintiffs, that it was not incumbent on the latter to demand the notes, but that it was the duty of the testator to tender them. The cases cited to that proposition fail to sustain it. In all of them the notes were duly demanded, and in nearly all of them the necessity of such demand in order to put the opposite party in default is clearly and distinctly recognized. Such demand, and a refusal by the testator to give the notes, were doubtless essential in this case to the plaintiffs’ right of action. It was competent, probably, for the plaintiffs to waive the giving of the notes, for that was a stipulation for their benefit alone; and in- that case they [228]*228could have maintained an action at the end of a year from the completion of their contract, for the installment of the- unpaid balance then due. But they did not wait a year. They delivered the last stone July 9th, 1868, and commenced this action July 7th, 1869. We see no escape from the conclusion that the action was prematurely brought. We think that the referee should have so determined, and it was not necessary that he should decide the merits of the action. He omitted to find the matter in abatement of the action, but determined the merits thereof. The court very properly set aside the report, but should, we think, go further, and find as facts, that there is no evidence that the notes mentioned in the complaint were ever demanded of the testator ; that this action was commenced in less than one year after the plaintiffs completed the contract; and that less than fifty per cent, of the contract price for the stone wrork remained unpaid when the action was commenced ; and as conclusions of law, that the action was prematurely brought, and should be dismissed. Or the same result can be attained by amending the report as here indicated. E. S., ch. 132, sec. 23 (Tay. Stats., 1499, § 26).
We are awarfe that we might have avoided an expression of our opinion upon the merits of the controversy. But the merits have been fully and ably argued, and it was deemed advisable to state our views thereupon, to the end that the necessity for further litigation may be avoided.
By the Court. — Order affirmed; and, inasmuch as the whole record of the case has been sent to this court on the appeal, the cause must be remanded for further proceedings according to law.