CLOPTON, J.
On August 24, 1888, the Circuit Court, in which the suit was originally instituted, made the following entry : “Came the parties by attorneys, and by agreement this cause is submitted to the arbitration of M. J. Miller and J. B. Goodwin, and they to call in a third man, whose award, when made according to law, to be made the judgment of this court in this case.” When the case was called for trial in the City Court, to which it had been transferred under the statute, at the January term, 1891, defendants moved to refer it to the arbitrators under the order of the Circuit Court. The motion was overruled, and the City Court proceeded to try and determine the cause.
Section 3221 of the Code declares : “It is the duty of all courts to encourage the settlement of controversies pending before them, by a reference thereof to arbitrators, chosen by the parties or their attorneys ; and on motion of the parties must make such order, and continue the cause for award; but such continuance must not extend beyond one term, unless for good cause shown, or by consent.” While it is made the duty of the court, in pursuance of the legislative policy declared in the statute, to make an order of reference on motion of the parties, such order does not, under the statute, oust the court of jurisdiction of the case. It remains pending in court, subject to be called at each succeeding term for trial. The suspension for award is not indefinite. The statute places a limitation upon the discretion of the court as to continuing the cause: the continuance must not extend beyond one term, unless good cause be shown, or the parties consent. So far as the present record discloses, and we can look no further, no action was taken in execution of the order of reference, [358]*358either by tbe arbitrators or by tbe parties ; and no canse shown when the case was called for trial, why it should longer be continued for award. Several terms having elapsed since the order of reference, and no award made, nor cause shown for a further continuance, it became the duty of the court, unless the parties consented to a further continuance, to disregard the order of reference, and proceed with the trial of the case. — Shelby Iron Co. v. Cobb, 55 Ala. 636.
The complaint contains several counts — one on a special contract for the erection of a dwelling-house, a common count for materials furnished and work and labor done, and a count for extra materials and extra work. The special contract contains a provision, that “no new work of any description done on the premises, or work of any kind whatsoever, shall be considered as extra, unless a separate estimate in writing for the same, before its commencement, shall have been submitted by the contractors to the proprietor, and his signature obtained thereto.” On the former appeal in the case (88 Ala. 367), this clause of the contract was construed. It was then held, that if no estimate in writing for the extra materials and work was submitted to defendant, and his signature thereto obtained, and no promise to pay for the same, no recovery could be had therefor; but, if, during the progress of the work, alterations in the plan were made by mutual assent, and defendant promised to pay for the extra work required by the alterations, plaintiffs, if such work was worth more, considering materials and workmanship, than the work for which it was substituted, are entitled to recover the difference, although no written estimate was submitted and signed. The count contains an averment that, while the building was in course of erection, defendant promised to pay for the extra work and materials, and there is evidence tending to show such promise. Charge 5, requested by defendants, ignores the effect of this evidence, and excludes it from the consideration of the jury. The liability of defendant for the extra work and materials does not rest upon a waiver of the special condition of the contract, but upon a subsequent and distinct agreement to alter or modify the contract, and to pay the increased costs of such alteration or modification. The jury would have understood from the charge that they could not allow for the extra work and materials, unless defendant expressly or impliedly waived the condition, though he may have verbally promised to pay for the same. The charge is misleading.
The part of the general charge excepted to, and several [359]*359of tbe charges ashed by defendants, relate to the liability of the owner of land for materials funished and work done in the erection of a building thereon under a special contract, when the contractor has failed to perform it. . This has been regarded as a vexed question, growing out of the fact that the building may add to the value of the land, and be of benefit to the owner, in connection with the practical difficulty of enforcing the right of rejection. Whatever contrariety of judicial views may exist, the rule, in such cases, has been long and well settled in this State. In Thornas v. Ellis, 4 Ala. 108, the rule is thus stated: “Indeed, nothing is more common than to permit a recovery upon an implied contract to pay the value of the labor, although it may not have amounted to a performance of the special contract; and this is always the rule when the defendant has accepted the work, or entered into possession and use of the house actually erected.” The same doctrine has been re-asserted in the subsequent cases of Merriwether v. Taylor, 15 Ala. 735; English v. Wilson, 34 Ala. 201; Bell v. Teague, 85 Ala. 211. The doctrine practically rests upon the acceptance of the building by the owner of the land, not as finished according to the contract, but in its incomplete condition, and that in such condition it is of benefit to him. The acceptance need not be express; when there is no gross or fraudulent violation or abandonment of the contract, it may be inferred from the use and enjoyment of the property by the owner of the land upon which value has been conferred by the erection of the building. The charges relating to this matter asked by defendants are defective in this : they assert the proposition, that plaintiffs can not recover, even under the common counts, without showing a strict performance of the contract, or that an acceptance can not be inferred from merely moving into, taking possession, and using and enjoying the house. It may be that moving into the house before its completion, by consent of plaintiffs, would not, of itself, amount to an acceptence. But it is also shown that defendants remained in possession after the completion of the house, and have used and.enjoyed it up to the time of trial. In such case, liability does not re^t on strict performance of the provisions of the contract on the part of plaintiffs, or a waiver thereof by defendant, but upon an implied agreement, raised by the law, to pay for the labor done and materials furnished, which were' of value and benefit, and accepted by him. On these principles, charges 1, 4, 6, 8, 14, and 16 .asked by defendant, were properly refused. [360]*360They predicate plaintiffs’ right to recover, tinder any count of the complaint, on performance of the special contract, or a waiver oí performance by defendants, or assume, as matter of law, that moving into the house, taking possession and enjoying the benefit, is not an acceptance. Besides charge 8 is argumentative. The question of acceptance was properly submitted to the jury. No question is raised as to the measure of recovery in such cases.
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CLOPTON, J.
On August 24, 1888, the Circuit Court, in which the suit was originally instituted, made the following entry : “Came the parties by attorneys, and by agreement this cause is submitted to the arbitration of M. J. Miller and J. B. Goodwin, and they to call in a third man, whose award, when made according to law, to be made the judgment of this court in this case.” When the case was called for trial in the City Court, to which it had been transferred under the statute, at the January term, 1891, defendants moved to refer it to the arbitrators under the order of the Circuit Court. The motion was overruled, and the City Court proceeded to try and determine the cause.
Section 3221 of the Code declares : “It is the duty of all courts to encourage the settlement of controversies pending before them, by a reference thereof to arbitrators, chosen by the parties or their attorneys ; and on motion of the parties must make such order, and continue the cause for award; but such continuance must not extend beyond one term, unless for good cause shown, or by consent.” While it is made the duty of the court, in pursuance of the legislative policy declared in the statute, to make an order of reference on motion of the parties, such order does not, under the statute, oust the court of jurisdiction of the case. It remains pending in court, subject to be called at each succeeding term for trial. The suspension for award is not indefinite. The statute places a limitation upon the discretion of the court as to continuing the cause: the continuance must not extend beyond one term, unless good cause be shown, or the parties consent. So far as the present record discloses, and we can look no further, no action was taken in execution of the order of reference, [358]*358either by tbe arbitrators or by tbe parties ; and no canse shown when the case was called for trial, why it should longer be continued for award. Several terms having elapsed since the order of reference, and no award made, nor cause shown for a further continuance, it became the duty of the court, unless the parties consented to a further continuance, to disregard the order of reference, and proceed with the trial of the case. — Shelby Iron Co. v. Cobb, 55 Ala. 636.
The complaint contains several counts — one on a special contract for the erection of a dwelling-house, a common count for materials furnished and work and labor done, and a count for extra materials and extra work. The special contract contains a provision, that “no new work of any description done on the premises, or work of any kind whatsoever, shall be considered as extra, unless a separate estimate in writing for the same, before its commencement, shall have been submitted by the contractors to the proprietor, and his signature obtained thereto.” On the former appeal in the case (88 Ala. 367), this clause of the contract was construed. It was then held, that if no estimate in writing for the extra materials and work was submitted to defendant, and his signature thereto obtained, and no promise to pay for the same, no recovery could be had therefor; but, if, during the progress of the work, alterations in the plan were made by mutual assent, and defendant promised to pay for the extra work required by the alterations, plaintiffs, if such work was worth more, considering materials and workmanship, than the work for which it was substituted, are entitled to recover the difference, although no written estimate was submitted and signed. The count contains an averment that, while the building was in course of erection, defendant promised to pay for the extra work and materials, and there is evidence tending to show such promise. Charge 5, requested by defendants, ignores the effect of this evidence, and excludes it from the consideration of the jury. The liability of defendant for the extra work and materials does not rest upon a waiver of the special condition of the contract, but upon a subsequent and distinct agreement to alter or modify the contract, and to pay the increased costs of such alteration or modification. The jury would have understood from the charge that they could not allow for the extra work and materials, unless defendant expressly or impliedly waived the condition, though he may have verbally promised to pay for the same. The charge is misleading.
The part of the general charge excepted to, and several [359]*359of tbe charges ashed by defendants, relate to the liability of the owner of land for materials funished and work done in the erection of a building thereon under a special contract, when the contractor has failed to perform it. . This has been regarded as a vexed question, growing out of the fact that the building may add to the value of the land, and be of benefit to the owner, in connection with the practical difficulty of enforcing the right of rejection. Whatever contrariety of judicial views may exist, the rule, in such cases, has been long and well settled in this State. In Thornas v. Ellis, 4 Ala. 108, the rule is thus stated: “Indeed, nothing is more common than to permit a recovery upon an implied contract to pay the value of the labor, although it may not have amounted to a performance of the special contract; and this is always the rule when the defendant has accepted the work, or entered into possession and use of the house actually erected.” The same doctrine has been re-asserted in the subsequent cases of Merriwether v. Taylor, 15 Ala. 735; English v. Wilson, 34 Ala. 201; Bell v. Teague, 85 Ala. 211. The doctrine practically rests upon the acceptance of the building by the owner of the land, not as finished according to the contract, but in its incomplete condition, and that in such condition it is of benefit to him. The acceptance need not be express; when there is no gross or fraudulent violation or abandonment of the contract, it may be inferred from the use and enjoyment of the property by the owner of the land upon which value has been conferred by the erection of the building. The charges relating to this matter asked by defendants are defective in this : they assert the proposition, that plaintiffs can not recover, even under the common counts, without showing a strict performance of the contract, or that an acceptance can not be inferred from merely moving into, taking possession, and using and enjoying the house. It may be that moving into the house before its completion, by consent of plaintiffs, would not, of itself, amount to an acceptence. But it is also shown that defendants remained in possession after the completion of the house, and have used and.enjoyed it up to the time of trial. In such case, liability does not re^t on strict performance of the provisions of the contract on the part of plaintiffs, or a waiver thereof by defendant, but upon an implied agreement, raised by the law, to pay for the labor done and materials furnished, which were' of value and benefit, and accepted by him. On these principles, charges 1, 4, 6, 8, 14, and 16 .asked by defendant, were properly refused. [360]*360They predicate plaintiffs’ right to recover, tinder any count of the complaint, on performance of the special contract, or a waiver oí performance by defendants, or assume, as matter of law, that moving into the house, taking possession and enjoying the benefit, is not an acceptance. Besides charge 8 is argumentative. The question of acceptance was properly submitted to the jury. No question is raised as to the measure of recovery in such cases.
By the special contract, defendants agreed to pay for the erection of- the house in installments as the work progressed; the fourth and last payment of seven hundred dollars to be made when the building was completed, and the drawings and specifications returned to the architects. The contract contains the provision, “ that in case of the final payment, a certificate shall be obtained from and signed by Chisolm & Green, architects, to the effect that the work is done in strict accordance with drawings and specifications, and that they consider the payment as properly due; said certificate, however, in no way lessening the total and final responsibility of the contractor ; neither shall it exempt the contractor from liability to replace work, if it be afterwards discovered to have been done ill, or not according to the drawings or specifications, either in execution or materials.”
The fourth count declares specially on the contract, setting it out in liaeo verba. To this count a demurrer was interposed, assigning as the ground of objection, that it did not specifically aver that the certificate of the architects was obtained. It avers that plaintiffs “have complied with all the provisions of the contract on their part, and erected said building according to said contract.” The count is substantially in the form of a complaint “on a dependent covenant or agreement,” as prescribed by the Code. Under the statutory form, a mere statement of the contract, with a 'general averment that plaintiffs had complied with all its provisions on their part, and that defendant had failed to comply with specific provisions, is sufficient. These forms have the force of a statute. — Brooklyn Life Ins. Co. v. Bledsoe, 52 Ala. 538.
The question as to the necessity of producing the certificate of the architects was also raised by charges 2 and 3 asked by defendant. Counsel for appellants have called our attention to cases decided by the New York Court of Appeals, in which it was held, under contracts containing similar provisions, that when the parties have made the production of the certificate of the architect, to the effect that [361]*361the work was completely finished, a condition precedent to final payment, the plaintiff is bound to procure the certificate, . if not' impracticable to get it without fault on his part; and if he does get it, the defendant is bound to pay, unless he can show that it was obtained by fraud or mistake. — Smith v. Brady, 17 N. Y. 173 ; Wyckolf v. Meyers, 44 N. Y. 143; Wangler v. Smith, 90 N. Y. 38. Parties competent may fix the terms' of their contract as they deem proper, and, in the absence of fraud or mistake, the court is not justified in displacing or altering them, though regarded imprudent or unwise. But whether, under the provisions of the contract, the obtainment of the architects’ certificate is a condition precedent to final payment, we deem it unnecessary to decide. If conceded that it is requisite to entitle plaintiffs to recover the final payment under the counts declaring on the special contract; if the contract has not been performed, and defendant has accepted the house, the production of the certificate is not essential to recovery under the common counts on an implied contract to pay the value of the labor done and materials furnished. Charge 2 is too broad, and was properly refused, for the reason that it predicates the production of such certificate or proof of facts showing that it was obstinately or unreasonably withheld, as an element of plaintiffs’ right to recover “in this action” — that is, under both the common and special counts. And charge 3 is obnoxious to the objection, that it submits to the jury the construction of the written contract, which it is the province and duty of the court to construe. — Bernstein v. Humes, 60 Ala. 582; Claghorn v. Lingo, 62 Ala. 230.
Charges 18 and 19 were properly refused, not only because argumentative in their nature, but also on the principle that, when the bill of exceptions does not set out all the evidence, if the legal propositions asserted by the charges might be met and avoided by proof of facts which would render the charges erroneous, this court will presume that such other facts were proved. — Montg. & Eu. Railway Co. v. Kolb, 73 Ala. 396; McLemore v. Nuckolls, 37 Ala. 662. The same observation applies to charge 12, which is to the effect, that if plaintiffs asked no further time to do extra work, defendant is entitled to reasonable damages for delay in finishing the building after the time of completion provided in the contract. If to do the extra work directed by defendant, and for which he promised to pay, necessarily required longer time to complete the building than allowed by the contract, a reasonable extension of the time will be implied, [362]*362and defendant is not entitled to damages for the delay under such circumstances.
Affirmed.