Wood, J.
(after stating the facts.) We will dispose of the assignments of error in the order presented by appellant’s counsel. ,
1. The court did not err in excluding the written bids that were offered in evidence. These were prior to and no part ■of the written contract. The contract was unambiguous, and it was complete as to the time and manner for the performance of the work, as well as the consideration to be paid therefor. The parties were bound by the terms of the contract, which, taken in connection with the plans and specifications, contained all the elements to which the bids referred.
2. The court did not err in excluding the certificate of the architect. There is no provision in the contract making the architect the arbiter of all matters of difference between the parties on final settlement after the completion of the work. ■ The certificate of the architect showed what was due from appellee to appellant, according to his opinion and his statement of the account between them. But, when all the provisions of the contract with reference'to the architect’s powers and duties are construed, it will be observed that he had no power to certify as to what was due from appellee to appellant under the contract. The contract provides that “the achitects’ and superintendents’ opinion, certificate, report and decision on all matters to be binding and conclusive on the party of the second part.” The words “on all matters” used in this clause of course refers to all the matters about which the architect, under the contract, was authorized to make a certificate. The duty of the architects under the contract was to see that the work was done according to the plans and specifications which they had furnished, and which they were authorized to furnish as the work progressed. The work was to be done to “the perfect satisfaction and approbation of the architects,” and the architects were “at liberty to make any deviation from or alteration in the plan, form, construction, detail and execution” of the work. They had “full power and lawful authority to reject the whole or any part.” If their orders were not fulfilled, they had power to “terminate forthwith further work by party of second part (appellee) and to have the work done by other parties at his cost.” If they believed the work was “retarded unnecessarily,” they could, as often as appeared to them necessary, “furnish such labor and materials as they might deem necessary to facilitate the completion of the work.” They were authorized “during the progress of the work” to issue certificates “for amounts aggregating 85 per cent, of the value of 'the labor performed and material furnished,” and for the remaining 15 per cent, upon the completion and delivery of said work and its acceptance by them. The above were “all the matters” upon which the architect might give his “opinion, certificate, report and decision.” But the certificate which appellant offered in evidence, and which it sought by its prayer number eight to have made conclusive against appellee, is beyond the scope of any authority given the architect -by the terms of the contract. The rulings of the court in rejecting the certificate and refusing the prayer were correct.
But we do not concur in the view of counsel for appellee “that the architect’s decision in every instance is null and void for the reason that it is in no manner binding upon the Boston Store.” The architect was the agent of appellant vested with full power to act for it, and in all matters coming within the purview of his powers and duties as specified in the various provisions of the contract, his “opinion, certificate, report and decision” were as binding on appellant as appellee. This notwithstanding the contract in express terms specified they were “binding and conclusive on the party of the second part.” The appellant could not escape the binding force and effect of the decision of one whom it expressly appointed and authorized to make decisions for it. The architect, in the ínatters designated for him to pass upon in the contract, was the alter ego of appellant.' The language used by the Supreme Court of Texas in Boettler v. Tendrick, 73 Tex. 488, is apposite here: “The owner did not undertake to supervise the work himself and to raise objections to workmanship or material, but selected persons of skill and experience to do this for him, and those persons were made the arbiters, and necessarily in the discharge of their duty to their employer were compelled from time to time to pass upon the workmanship and material. * * * The right of the builder to exercise his own judgment was subordinated to the judgment of the architects to whom power was given to determine what was proper workmanship or fit material,” etc. The decisions of the architect concerning these and the other matters designated ought to be held binding upon both parties. As Mr. Wharton says: “The owner has no right to complain, since the architect was selected by him -and charged by him with this very power; the builder has no right to complain since he took the work on this very condition.” Wharton, Con. 594. Under the provisions of this contract, there is no doubt that the decision or opinion of the architect concerning the manner of the execution of the work, the necessity for changes in the method by which appellee was propping up the walls, and all alterations that were necessary, was binding upon the parties to the contract. The acceptance of the work by the architect was necessary before appellee could recover. Had the certificate of the architect been confined to these matters, it would have been admissible. It embraced other things, and in the form presented was not admissible. It was offered as a whole.
3 and 4. Notwithstanding the contract makes the certificate, report, opinion, decision of the architect conclusive on the parties, the law writes into this provision that the conduct of the architect must be free from fraud. Fraud on his part destroys the effect of the provision. Therefore, if the architect fails to exercise his honest judgment, or makes such gross mistakes as necessarily imply bad faith, his decision, report, certificate and opinion are not binding on the parties to the contract. Hot Springs Ry. Co. v. Maher, 48 Ark. 522; Ozan Lumber Co. v. Haynes, 68 Ark. 185; Ark-Mo Zinc Co. v. Patterson, 79 Ark. 506; Carlile v. Corrigan, 83 Ark. 140; Kihlberg v. United States, 97 U. S. 398; Sweeney v. United States, 109 U. S. 618; Martinsburg & Potomac Rd. Co. v. March, 114 U. S. 549; Lloyd, Buildings, p. 32, § 22.
It was a question for the jury under the evidence to determine whether the delay in completing the work according to the contract was caused by any fraud or bad faith upon the part of the architect in directing and supervising the work as it progressed. The testimony of Ragland and other witnesses was relevant to this issue and was competent evidence. It is hot within the province of this court to pass upon its weight. The court did not err in-admitting the testimony.
5. In the seventh instruction the court in effect told the jury that if the delay in finishing the work was caused by the architect, then appellee was entitled to recover, unless the act of the architect in causing the delay was in good faith and necessary.
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Wood, J.
(after stating the facts.) We will dispose of the assignments of error in the order presented by appellant’s counsel. ,
1. The court did not err in excluding the written bids that were offered in evidence. These were prior to and no part ■of the written contract. The contract was unambiguous, and it was complete as to the time and manner for the performance of the work, as well as the consideration to be paid therefor. The parties were bound by the terms of the contract, which, taken in connection with the plans and specifications, contained all the elements to which the bids referred.
2. The court did not err in excluding the certificate of the architect. There is no provision in the contract making the architect the arbiter of all matters of difference between the parties on final settlement after the completion of the work. ■ The certificate of the architect showed what was due from appellee to appellant, according to his opinion and his statement of the account between them. But, when all the provisions of the contract with reference'to the architect’s powers and duties are construed, it will be observed that he had no power to certify as to what was due from appellee to appellant under the contract. The contract provides that “the achitects’ and superintendents’ opinion, certificate, report and decision on all matters to be binding and conclusive on the party of the second part.” The words “on all matters” used in this clause of course refers to all the matters about which the architect, under the contract, was authorized to make a certificate. The duty of the architects under the contract was to see that the work was done according to the plans and specifications which they had furnished, and which they were authorized to furnish as the work progressed. The work was to be done to “the perfect satisfaction and approbation of the architects,” and the architects were “at liberty to make any deviation from or alteration in the plan, form, construction, detail and execution” of the work. They had “full power and lawful authority to reject the whole or any part.” If their orders were not fulfilled, they had power to “terminate forthwith further work by party of second part (appellee) and to have the work done by other parties at his cost.” If they believed the work was “retarded unnecessarily,” they could, as often as appeared to them necessary, “furnish such labor and materials as they might deem necessary to facilitate the completion of the work.” They were authorized “during the progress of the work” to issue certificates “for amounts aggregating 85 per cent, of the value of 'the labor performed and material furnished,” and for the remaining 15 per cent, upon the completion and delivery of said work and its acceptance by them. The above were “all the matters” upon which the architect might give his “opinion, certificate, report and decision.” But the certificate which appellant offered in evidence, and which it sought by its prayer number eight to have made conclusive against appellee, is beyond the scope of any authority given the architect -by the terms of the contract. The rulings of the court in rejecting the certificate and refusing the prayer were correct.
But we do not concur in the view of counsel for appellee “that the architect’s decision in every instance is null and void for the reason that it is in no manner binding upon the Boston Store.” The architect was the agent of appellant vested with full power to act for it, and in all matters coming within the purview of his powers and duties as specified in the various provisions of the contract, his “opinion, certificate, report and decision” were as binding on appellant as appellee. This notwithstanding the contract in express terms specified they were “binding and conclusive on the party of the second part.” The appellant could not escape the binding force and effect of the decision of one whom it expressly appointed and authorized to make decisions for it. The architect, in the ínatters designated for him to pass upon in the contract, was the alter ego of appellant.' The language used by the Supreme Court of Texas in Boettler v. Tendrick, 73 Tex. 488, is apposite here: “The owner did not undertake to supervise the work himself and to raise objections to workmanship or material, but selected persons of skill and experience to do this for him, and those persons were made the arbiters, and necessarily in the discharge of their duty to their employer were compelled from time to time to pass upon the workmanship and material. * * * The right of the builder to exercise his own judgment was subordinated to the judgment of the architects to whom power was given to determine what was proper workmanship or fit material,” etc. The decisions of the architect concerning these and the other matters designated ought to be held binding upon both parties. As Mr. Wharton says: “The owner has no right to complain, since the architect was selected by him -and charged by him with this very power; the builder has no right to complain since he took the work on this very condition.” Wharton, Con. 594. Under the provisions of this contract, there is no doubt that the decision or opinion of the architect concerning the manner of the execution of the work, the necessity for changes in the method by which appellee was propping up the walls, and all alterations that were necessary, was binding upon the parties to the contract. The acceptance of the work by the architect was necessary before appellee could recover. Had the certificate of the architect been confined to these matters, it would have been admissible. It embraced other things, and in the form presented was not admissible. It was offered as a whole.
3 and 4. Notwithstanding the contract makes the certificate, report, opinion, decision of the architect conclusive on the parties, the law writes into this provision that the conduct of the architect must be free from fraud. Fraud on his part destroys the effect of the provision. Therefore, if the architect fails to exercise his honest judgment, or makes such gross mistakes as necessarily imply bad faith, his decision, report, certificate and opinion are not binding on the parties to the contract. Hot Springs Ry. Co. v. Maher, 48 Ark. 522; Ozan Lumber Co. v. Haynes, 68 Ark. 185; Ark-Mo Zinc Co. v. Patterson, 79 Ark. 506; Carlile v. Corrigan, 83 Ark. 140; Kihlberg v. United States, 97 U. S. 398; Sweeney v. United States, 109 U. S. 618; Martinsburg & Potomac Rd. Co. v. March, 114 U. S. 549; Lloyd, Buildings, p. 32, § 22.
It was a question for the jury under the evidence to determine whether the delay in completing the work according to the contract was caused by any fraud or bad faith upon the part of the architect in directing and supervising the work as it progressed. The testimony of Ragland and other witnesses was relevant to this issue and was competent evidence. It is hot within the province of this court to pass upon its weight. The court did not err in-admitting the testimony.
5. In the seventh instruction the court in effect told the jury that if the delay in finishing the work was caused by the architect, then appellee was entitled to recover, unless the act of the architect in causing the delay was in good faith and necessary. In other words, appellant could not claim1 any liquidated damages for delay caused by his architect, unless the delay was a necessary act in the supervision of the work, and also was caused in good faith on the part of the architect. This added a burden upon appellant that neither the contract nor the law authorized. All that was necessary, as we have seen, under the contract, was for the architect to act in good faith and use his honest judgment.. If he did this, appellant got the benefit of the delay, whether it was caused by a necessary act in supervising the work or not. If the architect, exercising ordinary care and honest judgment, made a mistake in directing something to be done that was entirely unnecessary, still under the contract that would not defeat appellant’s right to recover liquidated damages for delay in completing the work within the time specified.
It was not reversible error to give prayer number ten as modified, but the law would have been more accurately stated by simply adding the words “in the absence of fraud upon the architect’s part,” after the word “Schleuter” where it last appears in the prayer, making the instruction to read as follows:
“Under the law and evidence in this case, it was the duty of the architect, A. Klingensmith, to supervise the work done by plaintiff, Fred Schleuter, and to see that same was done in accordance with the contract, plans and specifications. And the said A. Klingensmith, by the terms of the agreement between plaintiff and defendant, had the exclusive right to pass upon said work, and the plaintiff, Fred Schleuter, in the absence of fraud on the architect’s part, cannot defeat the payment of the forfeit of $25.00 per day for delays, if any, which were caused by said architect in supervising said work.”
The instruction was in conflict with number 7.
For the error indicated the judgment is reversed, and the cause remanded for new trial.