A provision in a building contract for written certificates from the architect is for the benefit and protection of the owner. If he waives it repeatedly during the progress of the work, he cannot complain if he be held to have waived it when he seeks to defend against a final payment for work shown to have been honestly and substantially performed.
Plaintiff agreed to construct a movie theater for defendant. Under the parties' contract, payments were to be made upon the issuance of certificates by the architect. Defendant made several payments on account without requesting any certificates, then stopped making payments. Plaintiff sued to recover the balance due under the building contract. As the defendant's defense, he asserted that nonpayment was due to the non-issuance of required certificates. The trial court awared the plaintiff damages.
Was the plaintiff entitled to damages?
The court held that defendant could not assert a defense based on the lack of a final architect's certificate where his act of making payments without requesting the certificates waived his right to rely on the certificate provision in the contract, and where the contract made no distinction between the final payment and the payments on account. The trial court was correct in refusing defendant's motion for nonsuit and in refusing to give binding instructions for the defendant. The judgment for plaintiff was affirmed.