It is for the plaintiff in error to show affirmatively that
error was committed, it is not to be presumed, and will not be
inferred from a doubtful statement in the record.
Where there is no evidence of the amount of damage caused by
each particular breach but only of the total amount sustained, the
attention of the trial court should have been called to the
plaintiff's objection to a recovery of particular damage permitted,
and a request made for direction of verdict, and in the absence
thereof, the objection cannot be argued here.
Although, under a building contract, the builder, to be entitled
to payment, must first obtain the certificate of the architect, in
the absence of a provision in plain language to that effect, the
certificate is not conclusive as to the amount due nor a bar to the
owner's showing a violation of the contract, in material parts, by
which he has sustained damage.
27 App.D.C. 210 affirmed.
The Mercantile Trust Company, by this writ of error, seeks to
review a judgment of the Court of Appeals of the District of
Columbia, affirming a judgment against it of the Supreme Court of
the District for the sum of $8,468. The action was brought upon a
bond for $50,000 executed January 24, 1900, by the company as
surety for one Jones, for the performance by him of a written
contract entered into on the same date between him and the
defendant in error, who was the plaintiff below, relative to the
completion by Jones for the defendant in error of certain houses
already in process of construction in the City of Washington. The
condition of the bond was, in substance, that if the principal,
Jones, should duly and faithfully perform and fulfill all the
conditions of the contract entered into between him and the
defendant in error, the bond was to be void, otherwise to remain in
force.
The contract provided that Jones, for the consideration
mentioned therein, would, within seven months from the date
thereof, well and sufficiently erect and replace all defective
Page 205 U. S. 299
work and finish the twenty-one brick dwelling houses
mentioned
"agreeably to the drawings and specifications made by Melville
D. Hensey, architect, and which plans and specifications are signed
by the said parties hereto and hereunto annexed, within the time
aforesaid, in a good, workmanlike, and substantial manner, to the
satisfaction and under the direction of Bates Warren, or the
architect placed in charge by him to be testified by writing or
certificate under the hand of Bates Warren, or the architect placed
in charge by him, and also shall and will find and provide such
good, proper, and sufficient material of all kinds whatsoever as
shall be proper and sufficient for the completing and finishing all
of said twenty-one houses and other works of the said buildings
mentioned in the said specifications for the sum of $89,250, to be
paid as set out in the schedule of payments hereto annexed, and
signed by the parties hereto and made a part hereof."
Hensey, "in consideration of the covenants and agreements being
strictly performed and kept by the said party of the second part as
specified," agreed to pay the contractor the above-named sum
"as the work progresses, in the manner and at the time set out
in the schedule of payments hereto annexed and signed by the
parties hereto and made a part of this agreement; provided that in
each of the said cases a certificate shall be obtained from and
signed by the architect in charge that the contractor is entitled
to payment, 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 ill done or not according to the
drawings and specifications, either in execution or materials; and,
further, that the party of the second part shall furnish, if
required, satisfactory evidence that no lien does or can exist upon
the work."
The last payment provided for in the contract was to be made
"when the houses are fully completed in accordance with the said
agreement and the plans and specifications prepared therefor."
Page 205 U. S. 300
All the materials were to be new and of the best quality, and
the contractor was to "execute and complete all the work as set
forth in the specifications and drawings in the best and most
workmanlike manner." It was agreed that "in all cases of doubt as
to the meaning of the drawings, reference is to be made to the
architect in charge, whose decision will be final."
Although this contract was entered into in January, 1900, and
under it the houses were to be completed in seven months, yet, for
some reason, Bates Warren, the person named in the contract, did
not appoint an architect until April, 1901, when he appointed Mr.
W. J. Palmer. The evidence given on the part of the plaintiff
tended to prove that the contractor, Jones, abandoned the work on
the houses early in the fall of 1900, leaving them uncompleted, and
the work was otherwise carried on during the following winter, but
that there was no architect in charge until Mr. Palmer's
appointment. From that time, Mr. Palmer seems to have in some
degree superintended the work, and on the twenty-ninth of July,
1901, reported in writing to Mr. Warren the completion of the
houses in question. In his letter, Mr. Palmer said:
"The work has been done according to my interpretation of the
plans and specifications, and where deviations have been made from
the plans and specifications, it has been where the same were
inconsistent and ambiguous, and in all cases of inconsistency and
ambiguity, the work has been done according to the interpretation
most beneficial to the houses."
This action was subsequently commenced for the purpose of
recovering the damages which the plaintiff Hensey alleged he had
sustained by reason of the failure of Jones to fulfill and carry
out the contract. Issue being duly joined between the parties, the
plaintiff gave evidence tending to prove that the houses were not
completed within the contract time, nor according to the plans and
specifications in the particulars stated, and that the value of the
houses was between two and three thousand dollars less on each
house than it would have been had they been completed according to
the contract,
Page 205 U. S. 301
plans, and specifications. The defendant duly objected to such
evidence and took exceptions to its admission.
A verdict was rendered in favor of the plaintiff in the sum of
$8,468, after allowing the defendant's claim of set-off of
$29,032.
MR. JUSTICE PECKHAM, after making the foregoing statement,
delivered the opinion of the Court.
After even more than the usual number of pleas, additional
pleas, replications, rejoinders, and demurrers, which are to be
Page 205 U. S. 304
found in the pleadings in this District, the parties came to
trial on the issues of fact, and the plaintiff recovered a verdict
as stated. The judgment entered on the verdict was affirmed by the
Court of Appeals. 27 App.D.C. 210.
The grounds submitted in this Court for the reversal of the
judgment are reduced to two, set forth in the brief for the
plaintiff in error, as follows:
"First, that the testimony of all the plaintiff's witnesses who
testified in respect of deficiencies in construction being as to
the total damage sustained by the plaintiff as the result of
structural defects, defective materials, and omissions, and the
trial court having ruled that the jury should consider omissions
alone, there was no basis upon which the jury could segregate
damages caused by defective materials and damages caused by
omissions, so as to reach a verdict in accordance with the court's
ruling."
"Second, that, under the building agreement, the architect's
certificate of completion should have been held to be final and
conclusive of such completion, there being no evidence of fraud or
bad faith on his part."
In regard to this first ground of reversal, the record is at
first sight somewhat confused. The plaintiff in error asserts that
there was no evidence given segregating the items upon which the
sum total of the damage was arrived at; that the evidence given on
the part of the plaintiff was that the houses were each worth
between two and three thousand dollars less on account of the
failure of plaintiff in error to fulfill the conditions of the
contract, but that it is impossible to discover from that evidence
what amount of the damage was due to omissions, what amount to
structural defects, and what amount to defective material, and, as
the court instructed the jury that, in considering the question of
structural defects, they were not at liberty to consider anything
but omissions, and were not entitled to consider substitutions of
material or modifications of construction made with the approval of
the architect under his interpretation of the plans and
specifications, there
Page 205 U. S. 305
was in reality no evidence before the jury upon which they could
have estimated the damages under the instruction given them by the
court; that all the witnesses testified simply as to the total
diminution in value, as a result of the three items mentioned --
omissions, structural defects, and defective material -- while the
court charged, agreeably to the twelfth request of the plaintiff in
error, that they were at liberty only to consider damages resulting
from omissions.
The twelfth prayer of the plaintiff in error, which its counsel
asserts was granted by the court, is as follows:
"The jury are instructed that, in considering the question of
structural defects, they are not at liberty to consider anything
but omissions, if any they find, and are not entitled to consider
substitutions of materials or modifications of construction made
with the approval of the architect, under his interpretation of the
plans and specifications."
There are several answers to the first ground urged by the
plaintiff in error for a reversal of this judgment.
(1) It does not appear that there is any basis in the record for
the assertion of the plaintiff in error that there was no evidence
given showing the amount of damage sustained from each of the
breaches of the contract, but only a statement of the sum total
sustained by reason of all the breaches. The bill of exceptions
does not purport to set forth all the evidence given upon the trial
of the case. There is a general statement that the plaintiff gave
evidence by several witnesses that the houses were not completed
according to the plans and specifications in the contract in the
particulars set forth in the assignment of breaches, and that the
value, by reason of the omissions, structural defects, and
defective materials was from two to three thousand dollars less on
each house than it would have been had they been completed
according to the contract, plans, and specifications. This is not
at all equivalent to saying that there is no evidence except as to
the total damage. It is much more probable that, on the trial, such
evidence was given, and that the statement
Page 205 U. S. 306
in the bill is simply a summary of the total amount of damage,
which the evidence showed in detail had been sustained from each
particular breach. It does not mean that there was no evidence of
the amount of the damage caused from each breach that was proved.
It is very improbable that the case was tried in any such manner.
The amount of damage on account of each breach that was proved
would most naturally have also been proved as part of the case.
It is part of the duty of a plaintiff in error affirmatively to
show that error was committed. It is not to be presumed, and will
not be inferred from a doubtful statement in the record. We think
in this case the record fails to show the absence of the evidence
as argued by the plaintiff in error.
(2) If, however, we assume that there was no such evidence in
detail and only a conclusion given as to the total amount of
damage, and if we further assume that the twelfth request of the
plaintiff in error was charged by the court, and the right of
recovery was thereby limited as stated, it does not appear that the
plaintiff in error made any point on the trial of the absence of
the evidence of damage in detail, or that the court was asked to
direct a verdict for the defendant on account of its absence. If
there were no evidence of the amount of damage caused by each
particular breach, but only of the total amount sustained, and the
plaintiff in error desired to avail itself of that objection to a
recovery for the particular damage permitted, counsel should have
called the attention of the court to the point, and requested a
direction of a verdict for the defendant on that ground. No such
request was made, and nothing was said which would show that
counsel for the plaintiff in error had any such objection in mind,
and he cannot argue an objection here which was never taken in the
trial court.
(3) In truth, the court did not limit the recovery of damages,
as is set forth in the above-mentioned twelfth request to charge,
but permitted a recovery for the total sum of the various items
proved.
Page 205 U. S. 307
The defendant in error insists that the twelfth request, instead
of being charged, was in fact refused by the court. We think that
in this assertion the defendant in error is perfectly right. Some
little confusion at first appears on looking in the record, caused
by a mistaken reference to the request which was charged, but a
more careful perusal of all that appears regarding the charge of
the court, and the requests and refusals to charge, bring us to the
conclusion that there is not the slightest doubt that the court
refused the twelfth request, instead of charging it. In such case,
there was no occasion for segregating the items of damage
proved.
This leaves the argument of the plaintiff in error upon the
first ground wholly without merit.
The other ground taken for a reversal in this case is that the
architect's certificate of July 29, 1901, was conclusive between
the parties, and was a bar to the maintenance of this action.
Mr. Palmer, in his letter or certificate, reported the
completion of the buildings according to his interpretation of the
plans and specifications, and that, where deviations had been made
from them, it was where the same were inconsistent and ambiguous,
and in all cases of inconsistency and ambiguity, the work had been
done according to the interpretation most beneficial to the
houses.
We do not think this certificate was conclusive, and it did not
therefore bar the maintenance of this action. The language of the
contract upon which the claim is based is set out in the foregoing
statement, and while it provides that the work shall be completed
agreeably to the drawings and specifications made by M.D. Hensey,
architect, in a good, workmanlike, and substantial manner, to the
satisfaction and under the direction of Bates Warren, or the
architect placed in charge by him, to be testified by writing or
certificate under the hand of Bates Warren, or the architect placed
in charge by him, it omits any provision that the certificate shall
be final and conclusive between the parties. In other words,
Page 205 U. S. 308
the contract provides that, before the builder can claim payment
at all, he must obtain the certificate of the architect; but, after
such certificate has been given, there is no provision which bars
the plaintiff from showing a violation of the contract in material
parts by which he has sustained damage. A contract which provides
for the work on a building to be performed in the best manner and
the materials of the best quality, subject to the acceptance or
rejection of an architect, all to be done in strict accordance with
the plans and specifications, does not make the acceptance by the
architect final and conclusive, and will not bind the owner or
relieve the contractor from the agreement to perform according to
plans and specifications.
Glacius v. Black, 50 N.Y. 145;
Fontano v. Robbins, 22 App.D.C. 253. There is also in the
contract the provision already mentioned in the statement of facts
in regard to payments as the work progressed, which showed that a
certificate was to be obtained from and signed by the architect in
charge before the contractor was entitled to payment, but it was
provided that the certificate should
"in no way lessen 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 and specifications, either in
execution or materials."
There is the further positive agreement of the contractor to
execute and complete all the work as set forth in the
specifications in the best and most workmanlike manner, and also
that final payment is to be made only when the houses are completed
in accordance with the agreement and the plans and specifications
prepared therefor.
The whole contract shows, in our opinion, that the certificate
that the houses had been completed according to the contract and
its plans and specifications was not to be conclusive of the
question, and the plaintiff was not thereby precluded from showing
that, in fact, the contractor had not complied with his contract,
and the plaintiff had thereby sustained
Page 205 U. S. 309
damage. The cases cited in the opinion of the court below,
Fontano v. Robbins, 22 App.D.C. 253;
Bond v.
Newark, 19 N.J.Eq. 376;
Memphis &c. R. Co. v.
Wilcox, 48 Pa. 161;
Adlard v. Muldoon, 45 Ill. 193,
are in substance to this effect. To make such a certificate
conclusive requires plain language in the contract. It is not to be
implied.
Central Trust Co. v. Louisville &c. R. Co.,
70 F. 282. 284. The cases of
Sweeney v. United States,
109 U. S. 618;
Martinsburg &c. Railroad Co. v. March, 114 U.
S. 549;
Chicago &c. Railroad Co. v. Price,
138 U. S. 185;
Sheffield &c. Railroad Co. v. Gordon, 151 U.
S. 285, were all cases in which the contract itself
provided that the certificate should be final and conclusive
between the parties.
The only case in which the certificate of the architect or his
decision was by the contract made final was in case of doubt as to
the meaning of drawings, in which case reference was to be made to
the architect in charge, whose decision was to be final.
Both grounds urged by the plaintiff in error in this Court for
reversal of the judgment are untenable, and it must therefore
be
Affirmed.
MR. JUSTICE BREWER took no part in the decision of this
case.
