Fay v. Moore

261 Pa. 437, 104 A. 686 (1918)



The provision in a contract requiring the production of the certificate of the architect, showing completion of the work, is intended as a protection to the owner against unjust claims by the contractor and to see that the latter properly carries out his agreement. In cases where the evidence establishes that the architect was capricious, fraudulent or acting in collusion with the owner, his withholding of the certificate will not prevent the contractor from recovering the amount due him. 


A contractor sued to recover from the owner a balance alleged to be due under a contract for the erection of a building.The owner alleged that the contractor failed to complete the work in accordance with the specifications whereby the owner was obliged to take possession of the building and finish it at an expense beyond the contract price. The architect refused to issue a certificate of completion because the owner complained that certain items were not completed to his satisfaction.  The trial court found in favor of contractor. The case was appealed to the Supreme Court of Pennsylvania.


Was the contractor entitled to recover of the balance of his contract with the owner?




The court found that based on the evidence, the jury was warranted in finding that the architect in condemning the bead used by the contractor was not acting upon his own impartial judgment as to the sufficiency of the work but at the dictation and to satisfy the whim of the owner. In addition, while the contract provided that no alterations could be made except on the written order of the architect, the parties had the right to waive such provision and the verdict indicated that they did do so. Finally, the court found that the provision requiring the production of a certificate of completion would not prevent the contractor from recovering the amount due him because the evidence established that the refusal of the architect to give the certificate was capricious, fraudulent, or based on collusion with the owner.

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