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The acceptance of the order given by the Wadsworths to the plaintiffs upon the defendant was in terms conditional, and payment made dependent upon completion of the building and on the architect's certificate. And by the contract such certificate was made a condition precedent to the right to any payments upon the work. No such certificate was obtained by the Wadsworths or the plaintiffs in support of the demand for payment of the amount of the order or any portion of it, but upon application made to him November 29, 1887, by one of the plaintiffs for a final certificate on the work, the architect put his refusal in writing of that date as follows:
"Mr. F.P. CROUCH — Replying to your request for final certificate on the Gutmann contract, I regret that there are so many things which are imperfect that I am prevented from certifying to the satisfactory completion of the work under the contract. JAMES G. CUTLER, "Architect."
The parties to the contract, by it made the architect's certificate essential evidence of performance and of the right to payment founded upon it, and unless its production was in some manner waived, or its necessity otherwise overcome or obviated, the failure to obtain it constituted a bar to recovery by the plaintiffs. (Smith v. Brady, 17 N.Y. 173.) In support of his conclusions, the referee found that the contractor Stauchen substantially performed the work on his part, and that on his adjustment with the defendant there was deducted $199.55 for defective mason work, and $1,300 for delay from
April 1 to August 8, 1887, in completing the work. And that the Wadsworths substantially performed the agreement on their part, though in some particulars their work was not first class, but there was no willful or intentional departure on their part from the terms of the contract; and that such defects did not pervade the whole work, and were "not so essential that the object which the parties intended to accomplish was not accomplished." He also found that the architect refused to give the plaintiffs a certificate for final estimate, and upon demand refused to give any certificate; and that his refusal to give any certificate was unjust and unreasonable. The latter may have been supported if the finding of substantial performance was warranted. Both propositions are challenged by the defendant's exceptions. Since the rule of exact or literal performance has been relaxed and recovery may be founded upon substantial performance, that term, in its practical application to building contracts, has perhaps necessarily become somewhat indefinite otherwise than that the builder must have in good faith intended to comply with the contract, and shall substantially have done so in the sense that the defects are not pervasive, do not constitute a deviation from the general plan contemplated for the work, and are not so essential that the object of the parties in making the contract and its purpose cannot, without difficulty, be accomplished by remedying them. Then slight defects caused by inadvertence or unintentional omissions are not necessarily in the way of recovery of the contract price, less the amount, by way of damages, requisite to indemnify the owner for the expense of conforming the work to that for which he contracted. And whether, having in view those guiding considerations, the contractor has proceeded in good faith, and the defects are slight in the sense applicable to them in their relation to the work as a whole, are usually questions of fact, and upon their determination is dependent the disposition of that of substantial performance. (Glacius v. Black, 50 N.Y. 145; Phillip v. Gallant,
62 id. 256; Woodward v. Fuller, 80 id. 312; Nolan v.Whitney, 88 id. 648.)
In the present case the defective condition of the carpenter work from all causes, as described by the findings of the referee, were that the walls of the building settled to some extent, thereby affecting the carpenter work; that the base boards in many cases parted from the floor, that such shrinkage of the boards was without the fault of the Wadsworths or the material furnished, but was due to the settling of the walls and partially to the steam heat; that the materials furnished by them were according to the terms of the contract, except that of the shelving in closets and the maple flooring for the halls, part of which was second-class material. These facts have some evidence for their support.
The referee further found upon the subject of defects in the carpenter work, that when the Wadsworths stopped work in the latter part of July, 1887, there were defects in their work in the following respects: "In the bath-rooms, in the hardwood floors, pieced casings on windows in rear of building, defective hand-rail on front stairs, moulding in some portions of the building not properly smoothed before oiling, imperfect painting on the front of the building." And further, that on the defendant's three days' notice provided by the contract and given on July 30, 1887, to the contractor to provide materials and workmen to complete the work, the defendant employed to remedy the defects one Pike, a carpenter, whose work upon the building was "fixing the doors so they would latch and windows so they would slide, fixing covers on wash trays, fixing back stairs, being defects principally due in part to poor workmanship and in part to settling of the building. That the front of the building was repainted by men employed by Pike, the original job having been a poor one showing spots, and in some cases when Pike's repairing made it necessary, additional coats of oil were put on the building in the interior." And that the fair value of the labor and materials necessary to remedy and make good the defective and omitted work covered by the specifications performed by Pike and his painter was $439.29.
The referee then proceeded by his findings to state that the
defective work covered by the specifications and not remedied by Pike consisted of "maple flooring in the halls in which some cases second-class material was used, and the floors themselves in some cases present an uneven surface caused by settling of the building. The window frames in rooms in the rear of the building were not set to correspond in height with the doors in said rear rooms, and the hand-rail on front stairs was patched, and there was defective work in the bath-rooms, window casings and closet shelves, but the said defects do not prevent the use of the building for the purposes intended." And that the fair value of the labor and materials necessary to remedy such defective work not remedied by Pike and his painter was $205. He also found that the Wadsworths failed to provide iron transom guards for rear doors and iron registers for front, for which deduction of $12 should be made.
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The acceptance of the order given by the Wadsworths to the plaintiffs upon the defendant was in terms conditional, and payment made dependent upon completion of the building and on the architect's certificate. And by the contract such certificate was made a condition precedent to the right to any payments upon the work. No such certificate was obtained by the Wadsworths or the plaintiffs in support of the demand for payment of the amount of the order or any portion of it, but upon application made to him November 29, 1887, by one of the plaintiffs for a final certificate on the work, the architect put his refusal in writing of that date as follows:
"Mr. F.P. CROUCH — Replying to your request for final certificate on the Gutmann contract, I regret that there are so many things which are imperfect that I am prevented from certifying to the satisfactory completion of the work under the contract. JAMES G. CUTLER, "Architect."
The parties to the contract, by it made the architect's certificate essential evidence of performance and of the right to payment founded upon it, and unless its production was in some manner waived, or its necessity otherwise overcome or obviated, the failure to obtain it constituted a bar to recovery by the plaintiffs. (Smith v. Brady, 17 N.Y. 173.) In support of his conclusions, the referee found that the contractor Stauchen substantially performed the work on his part, and that on his adjustment with the defendant there was deducted $199.55 for defective mason work, and $1,300 for delay from
April 1 to August 8, 1887, in completing the work. And that the Wadsworths substantially performed the agreement on their part, though in some particulars their work was not first class, but there was no willful or intentional departure on their part from the terms of the contract; and that such defects did not pervade the whole work, and were "not so essential that the object which the parties intended to accomplish was not accomplished." He also found that the architect refused to give the plaintiffs a certificate for final estimate, and upon demand refused to give any certificate; and that his refusal to give any certificate was unjust and unreasonable. The latter may have been supported if the finding of substantial performance was warranted. Both propositions are challenged by the defendant's exceptions. Since the rule of exact or literal performance has been relaxed and recovery may be founded upon substantial performance, that term, in its practical application to building contracts, has perhaps necessarily become somewhat indefinite otherwise than that the builder must have in good faith intended to comply with the contract, and shall substantially have done so in the sense that the defects are not pervasive, do not constitute a deviation from the general plan contemplated for the work, and are not so essential that the object of the parties in making the contract and its purpose cannot, without difficulty, be accomplished by remedying them. Then slight defects caused by inadvertence or unintentional omissions are not necessarily in the way of recovery of the contract price, less the amount, by way of damages, requisite to indemnify the owner for the expense of conforming the work to that for which he contracted. And whether, having in view those guiding considerations, the contractor has proceeded in good faith, and the defects are slight in the sense applicable to them in their relation to the work as a whole, are usually questions of fact, and upon their determination is dependent the disposition of that of substantial performance. (Glacius v. Black, 50 N.Y. 145; Phillip v. Gallant,
62 id. 256; Woodward v. Fuller, 80 id. 312; Nolan v.Whitney, 88 id. 648.)
In the present case the defective condition of the carpenter work from all causes, as described by the findings of the referee, were that the walls of the building settled to some extent, thereby affecting the carpenter work; that the base boards in many cases parted from the floor, that such shrinkage of the boards was without the fault of the Wadsworths or the material furnished, but was due to the settling of the walls and partially to the steam heat; that the materials furnished by them were according to the terms of the contract, except that of the shelving in closets and the maple flooring for the halls, part of which was second-class material. These facts have some evidence for their support.
The referee further found upon the subject of defects in the carpenter work, that when the Wadsworths stopped work in the latter part of July, 1887, there were defects in their work in the following respects: "In the bath-rooms, in the hardwood floors, pieced casings on windows in rear of building, defective hand-rail on front stairs, moulding in some portions of the building not properly smoothed before oiling, imperfect painting on the front of the building." And further, that on the defendant's three days' notice provided by the contract and given on July 30, 1887, to the contractor to provide materials and workmen to complete the work, the defendant employed to remedy the defects one Pike, a carpenter, whose work upon the building was "fixing the doors so they would latch and windows so they would slide, fixing covers on wash trays, fixing back stairs, being defects principally due in part to poor workmanship and in part to settling of the building. That the front of the building was repainted by men employed by Pike, the original job having been a poor one showing spots, and in some cases when Pike's repairing made it necessary, additional coats of oil were put on the building in the interior." And that the fair value of the labor and materials necessary to remedy and make good the defective and omitted work covered by the specifications performed by Pike and his painter was $439.29.
The referee then proceeded by his findings to state that the
defective work covered by the specifications and not remedied by Pike consisted of "maple flooring in the halls in which some cases second-class material was used, and the floors themselves in some cases present an uneven surface caused by settling of the building. The window frames in rooms in the rear of the building were not set to correspond in height with the doors in said rear rooms, and the hand-rail on front stairs was patched, and there was defective work in the bath-rooms, window casings and closet shelves, but the said defects do not prevent the use of the building for the purposes intended." And that the fair value of the labor and materials necessary to remedy such defective work not remedied by Pike and his painter was $205. He also found that the Wadsworths failed to provide iron transom guards for rear doors and iron registers for front, for which deduction of $12 should be made. And he added that when Pike had completed his work before mentioned and on or about September 21, 1887, the defendant took and has since remained in possession of the building and has rented portions of it to tenants. Although there is a conflict in the evidence in respect to some of such findings, there is in the record some evidence tending to support all of them, and for the purposes of this review they must, therefore, be deemed conclusive of the facts so found by him.
While the condition of the carpenter work when the Wadsworths left it in July, was such as to indicate defects and omissions, the correction of which would cost $656.29, it may be observed that such defects upon such estimate of the cost to the amount of $439.29 were remedied through the action of the defendant taken pursuant to his right reserved by the contract, to furnish materials and workmen to proceed with the work and charge the expense to the contractor upon the failure of the latter to do it on three days' notice to him to that effect. This work having been done by the defendant in the exercise, by his election, of such right, he cannot effectually assert forfeiture in respect to the deficiency so supplied, but the Wadsworths were entitled to the benefit of the work
thus produced and were chargeable to the defendant for the amount of the expense incurred by him in doing it. (Murphy v.Buchman, 66 N.Y. 297.) When the application for the architect's certificate was made, this work had been done and the defects in the work to that extent removed, and in other respects the work could then have been made to conform to the specifications by the appropriation to that purpose of the sum of $216.71. This was the situation when the architect was requested by the plaintiffs to make certificate for payment of final estimate. If the work was then substantially performed as found by the referee, the conclusion was warranted that the refusal of the architect to give any certificate was unreasonable in the legal sense applicable to it for the purposes of relief. (Nolan v.Whitney, 88 N.Y. 648.)
The amount of damages for want of strict performance was not such as to necessarily defeat the claim of substantial performance. (Phillip v. Gallant, 62 N.Y. 256.) The cost of completion of work by remedying defects or supplying omissions in it to meet the requirement of a contract may be so great as to preclude the conclusion of substantial performance.
In Flaherty v. Miner (123 N.Y. 382), where the damages allowed were upwards of seventeen per cent of the contract price, the court suggested (without deciding) that if it had appeared "without dispute that such a substantial portion of the work remained undone and objection had been properly taken, it may well be that the plaintiff could not have recovered upon the theory of a substantial performance." It is suggested that it was not within the province of the architect's duty to make deductions for defective work, or to determine what less than exact or full completion of the work, according to the contract, was such substantial performance as to permit recovery. That may be true in such sense that the refusal of a certificate may, on his part, have been without purpose to deny to the contractor that which he may have been entitled, and yet it may be determined on trial that the certificate was unreasonably withheld. The considerations of good faith on the part of the contractor bearing upon the
question whether the defective work was willful or unintentional and inadvertent the architect may not be willing to determine. But if he gives a certificate founded upon final estimate that the work is substantially performed, the right to abate recovery for defects in the work is not necessarily defeated.
In Phillip v. Gallant (62 N.Y. 257), where the contract price of the work was $865.11 and the damages allowed for defective work was $75, the question of substantial performance was held to be one of fact, and the amount of damages was not treated as inconsistent with the conclusion to that effect. And see Van Clief v. Van Vechten (42 N.Y.S.R. 736).
The rule of substantial performance should not be extended beyond the purpose in view when the relaxation of the strict performance was adopted, which was founded upon equitable considerations in furtherance of justice, and made applicable to cases of honest intention of contractors to fairly perform their contracts, and who shall in the main have done so, with only slight defects or omissions inadvertently and unintentionally caused and appearing in the work. The present is a case not free from difficulty in that respect. Not less so in the extent of the deficiencies than in the character of some of them. The fact that the windows in the rear of the building were not in align with the doors and were differently cased, were features not in accordance with the specifications, and would seem to have been apparent to observation reasonably diligent. Yet the Wadsworths testify to the effect that they supposed that they had completed the carpentry work according to the contract. The inference was permitted, as the result showed, that they may have placed too much reliance upon the care and skill of their employes. And it does not appear that their attention was by the defendant or his architect called during the progress of the work to those defects in such windows and casings, although payments were from time to time made upon the certificates of the latter to those contractors The referee, however, was by stipulation of the
parties given the opportunity, which he made available, of viewing the premises and making personal inspection of the work, and he may have acquired such aid in considering the evidence of the witnesses as might thus be afforded him. And it cannot now, in view of the evidence and against his findings, be held as matter of law that the defects, or any of them, were willfully caused or permitted by the contractors. Whatever view we may have taken of the weight of evidence on the questions of fact upon the subject, those findings in that respect approved by the court below, must be deemed conclusive on this review. The time within which the contractor undertook to perform the work was an essential element in the contract, which provided for stipulated damages at the rate of ten dollars per day for the period of delay in that respect arising from his act or default, subject, however, to the right to such extension of time as might be rendered reasonable by strike of workmen, to whose demands the contractor was not required to yield. In the settlement made by the defendant, through his architect, with the original contractor, damages at such rate were allowed to defendant for delay for the entire time from April 1 to August 8, 1887, when such settlement was made. And no claim of that character, up to that time, arises in this action. It seems that the carpenter work which the subcontractors undertook to perform, was not made the subject of that settlement, but was eliminated from it. And assuming that any delay in such work subsequent to that time and prior to the time the possession of the building was made available to the defendant, was properly the subject of consideration in the present action, the question arises whether any and what amount of damages for that cause are chargeable by way of abatement of the alleged claim of the plaintiff. The work which the defendant, following the three days' notice before mentioned, caused to be performed, was not completed until about the 21st of September, 1887, when he took possession of the building. Thus intervened a period of upwards of forty days after the time up to which the matter
of delay had been adjusted with the original contractor. The referee has found that the subcontractors were delayed in the work two or three weeks by a strike of workmen, four or five days awaiting the decision of the defendant in respect to certain specified work, and that they were hindered and delayed by the plumbers at various times covering a period of thirty days. He also found that they performed some extra work amounting to$260, the time occupied in doing which does not appear. The plumbers did their work under a contract with defendant independent of his contract with Stauchen. In view of those facts taken as true, and which there is some evidence tending to prove, it would seem that delay in the carpenter work for a time at least equal to that from August eighth to September twenty-first did not "arise from any act or default on the part of the" contractors; and the conclusion was permitted that the defendant in such settlement was allowed all he became entitled to on account of the delay in the work. We have for the purposes of this question of delay treated the work before referred to, which the defendant caused to be done, the same as if the subcontractors had performed it themselves and taken the same time that was occupied in its performance by the person employed by the defendant for that purpose.
There were some other matters made the subject of controversy, and to which the defendant's exceptions call attention, but upon careful examination of the record it is found that none of the findings or refusal to find of the referee are wholly unsupported by evidence. None of the exceptions seem to have been well taken.
The judgment should be affirmed.