erally and in how many different jurisdictions they have arisen.22 It must not be lost sight of that the owner and contractor may, by specific agreement, provide as to the effect of the architect's certificate and the necessity for its production. Any proper agreement which they may make on these points will be binding upon them and the necessity for the production by the contractor of the certificate will be determined by the terms of the agreement so arrived at. In at least one instance the parties to the contract agreed, for example, that the architect's certificate could not be attacked, even on the ground of fraud.23 If the contract provides that any and all extra work shall be per 22 Heidlinger V. Onward Const. Co., 44 Misc. (N. Y.) 555, 90 N. Y. Supp. (124 N. Y. St. Rep.) 115; Olsen v. Schwarzwelder, 109 N. Y. App. Div. 282, 95 N. Y. Supp. 651; Traitel v. Oussani, 51 Misc. (N. Y.) 667, 135 N. Y. St. Rep. (101 N. Y. Supp.) 105; White v. Abbott, 188 Mass. 99, 74 N. E. 305; Hebert v. Dewey, 191 Mass. 403, 77 N. E. 822; Loftus v. Jorjorian, 194 Mass. 165, 80 N. E. 235; Bush v. Jones (C. C. A.), 144 Fed. 942; Stephens v. Essex County Park Commission (C. C. A.), 143 Fed. 844; Wyman v. Hooker, 2 Cal. App. 36, 83 Pac. 79; Fitzgerald v. Benner, 219 Ill. 485, 76 N. E. 709; Barbee v. Findlay, 221 Ill. 251, 77 N. E. 590; Andrew Lohr Bottling Co. v. Ferguson, 223 Ill. 88, 79 N. E. 35; Louisville Foundry Co. v. Patterson (Ky. Ct. of App. May 9th, 1906), 93 S. W. 22; Dogue v. Levy, 114 La. 21, 37 So. 995; Filston Farm Co. v. Henderson (Md. Ct. of App. June 27, 1907), 67 Atl. 228; Carnegie Public Lib. Assoc. v. Harris (Tex. Civ. App. May 9th, 1906), 97 S. W. 520; Lavanway v. Cannon, 37 Wash. 593, 79 Pac. 1117; Halsey v. Waukesha Springs Sanitarium Co., 125 Wis. 311, 104 N. W. 94; Modern Steel Structure Co. v. English Const. Co., 129 Wis. 31, 108 N. W. 70; Robins v. Goddard (1905), I K. B. 294. 23 Tullis v. Jackson, 3 ch. (1892) 441. least, that the If he does so, formed only on the certificate of the architect, the production of the certificate will be clearly a condition precedent to any recovery by the contractor 24 while, on the other hand, the owner may, if he desire to do so, waive such a provision,25 in which event, the production of the certificate will not be required. In every case, there is an implied agreement, at owner will not obstruct the work. he is liable to the contractor for the extra expense made necessary by his action and can not prevent a recovery therefor by the contractor by the plea that the contract provides that there shall be no claims for extras, unless they are approved by the client.26 A contractor has been allowed to recover for additional work directed to be done by a building inspector, although it had not been approved by the architect,27 but such a recovery might not be allowed in a case where the contract, by its terms, made the production of the certificate a condition precedent to such recovery. It has been held that the owner can not ordinarily recover damages on the ground that the contractor has failed to perform, where the architect has issued a certificate approving the work which the owner claims has not been properly 24 Const. Co. v. Cold Storage etc. Co. (Mass), 119, N. E. 948; Kennedy v. U. S., 24 Ct. of Claims 122; Fowler v. Deakman, 84 Ill. 130; Taub v. Woodruff (Tex.), 134 S. W. 750. 25 Bradley v. McDonald, 157 A. D. N. Y. 572; Munk v. 29 performed. 28 Where, however, the owner pays the contractor on the certificates of the architect, before the completion of the work, and the contractor agrees to furnish the necessary labor and materials to completion and thereafter abandons the work, the owner can collect from the contractor the amount of liens on the property resulting from the failure of the contractor to carry out his agreement. An unauthorized or improper acceptance of the work by the architect will not preclude the owner from asserting his rights against the contractor.30 Whether the acceptance is improper or unauthorized will depend in turn upon the terms of the construction contract and the circumstances under which the acceptance is given. It must be understood, also, that the architect is not authorized to accept work which differs from that called for under the contract. The acceptance of such work will not bind the owner, even if the contract provides that the work done shall be subject to the acceptance or rejection of the architect. This provision under such circumstances is held to be inserted for the benefit of the owner and as an additional safeguard in his interest, and is not to be construed as conferring upon the architect 28 Seventh Baptist Church v. Andrew, 115 Maryland 535; and see also General Fireproofing Co. v. Wallace, 175 Fed. 650. 29 L'Union Musicale v. Chevalier, 109 Me. 548. 30 Walstrom v. Oliver, etc., Co., 161 Ala. 608; Lewis v. Yagel, 77 Hun 337; Hurley v. School Dist. (Wash.), 215 Pac. 21. the right to accept any work done, irrespective of whether it is in accordance with the contract.31 § 56. Damages.-The contractor is in duty bound to see that the work performed by him for the owner is performed in a proper and workmanlike manner, and if this is not the case and reasonable care is not employed and damage to the owner results, the latter may look directly to the contractor for compensation.32 If there be a breach of the contract by the contractor the owner is clearly entitled to recover or offset the damages which he has suffered thereby.38 33 While the relationship of owner and contractor is not characterized by the elements of special trust and confidence to the same extent as is the relationship of owner and architect, and while the duties of the contractor to the owner, and of the 31 Lewis v. Yagel, 77 Hun 337. 32 Mohawk, etc., Co. V. Brown, 163 N. Y. A. D. 157; David v. McDonald, 8 L. C. (Lower Canada) Jurist, 44; 14 L. C. Rep. 31; and see Newman v. Fowler, 37 N. J. L. 89; compare also Cass County v. Gibson, 107 Fed. 363, to effect that an offer by the builder in good faith to correct defects will entitle him to recover. As to what acceptance will constitute a waiver, see Smith v. Brady, 17 N. Y. 173; Estep et al v. Fenton et al., 66 Ill. 467; Korf v. Lull, 70 Ill. 420. 33 Estep v. Fenton, et al., 66 Illinois 467; Sarrazin v. Adams, 110 Louisiana 124; Wilson v. Borden, 68 N. J. L. 627; Bell v. Fox, 138 App. Div. (N. Y.) 569; Shultze v. Goodstein, 180 N. Y. 248; Bosque v. YuChipco (Philippine), 14 Philippine 95; Clifford v. Richardson, 18 Vt. 620; Atlantic etc. Co. v. Delaware etc. Co., 98 Virginia 503; Marshall v. Mackintosh, 78 L. T. Rep. N. S. (England) 750; Galbreath v. Crich, 37 Ontario Law 424; Bain v. Eagle, 7 Sask. Law 169. owner to the contractor, are limited and prescribed almost entirely by the more strictly legal obligations of the one to the other, as set forth in the contract between them, and without those other and implied elements of special obligation and trust which characterize a professional, as distinguished from a business, relationship, nevertheless, the owner and the contractor must deal with one another in absolute and entire good faith. If the owner depart from his duties in this respect and conspire against the contractor, either with the architect or with others, he is liable to the contractor for any damages occasioned the latter as a result of his conduct. On the other hand, if it appear that the contractor has been guilty of any improper conduct toward, or willful departure from his obligations to, the owner, the latter may recover the damage caused him by such wrongful acts of the contractor. 34 It is a well recognized and long established principle that a contract induced by fraud is voidable at the option of the party defrauded. If, therefore, some concession or agreement be made either by the owner or by the contractor as a result of bad faith or of misrepresentation on the part of the other, the transaction may be deemed a nullity by the innocent party. Thus, if the architect waive the requirements of a written con 34 Morrison v. Universal, etc., Co., L. R. 8 Exch. Cases 197; Rowley v. Bigelow, 12 Pick. (Mass.) 307; Byard v. Holmes, 33 N. J. L. 119; Daly v. Wise, 132 N. Y. 306; Cobb v. Hatfield, 46 N. Y. 533; Baird v. New York, 96 N. Y. 567. |