Mackinson v. Conlon

27 A. 930, 55 N.J.L. 564, 26 Vroom 564, 1893 N.J. LEXIS 23

Opinion

The opinion of the court was delivered by

Dixon, J.

"We think that the charge of the learned judge gave undue effect to the certificate of June 4th. The contract authorized the architect to certify only when the several payments specified were due, and this certificate was not of that character. It therefore could derive no validity from the contract. Its force must be gathered from other acts of the parties respecting it. The plaintiff never accepted or acquiesced in it, but at all times repudiated it. The defendant’s letters and check clearly show that he did not assent to its taking the place of the certificate prescribed by the contract, as a condition precedent to a suit on the contract for the final payment.

The attention of the trial court should have been directed to the inquiry whether the defendant had waived the production of the final certificate (Byrne v. Sisters of St. Elizabeth, 16 Vroom 213), or had accepted the work done in such manner as to render him liable for it on the quantum, meruit. Bozarth v. Dudley, 15 Vroom 304. These are questions of fact which we cannot decide.

The judgment below should be reversed and a venire de novo should issue.

For affirmance — None.

For reversal — The Chancellor, Chief Justice, Abbett, Dixon, Garrison, Lippincott, Magie, Reed, Van Syckel, Bogert, Brown, Clement, Krueger, Smith. 14.