549. Want of Written Order may be Cured by Final Certificate, if Certificate Partakes of the Nature of an Award.-Some of the English cases have made a distinction between progress certificates and the final certificate.' Progress certificates have been regarded as simple statements of matters of fact, such as the weight or measure of the materials delivered, or of the work done, and their contract prices, and the payments under them as provisional and subject to adjustment and revision when the contract is completed and the final estimate rendered.' Interim or progress certificates are not given the weight of adjudications, the final estimate alone being accorded the final and conclusive effect of an award. If such extras are included in the progress certificates the omission to order them in writing is not cured, but if included in the final certificate, or the award, the necessity of a written order is done away with.** When the engineer had been made sole umpire with respect to the amount, state, and condition of the works actually executed, and also of any and every question that may arise concerning the construction of the pres ent contract, or the said plans, drawings, elevations, and specifications, or the execution of the works thereby contracted for, or in anywise relating thereto, should be final and without appeal; and where a submission has been made to the judgment and discretion of the engineer, the English courts have repeatedly held that the engineer's or architect's certificate was conclusive for the sum certified, even though it did include extra work which had not been ordered in writing as required by the contract." It is equally conclusive upon the company and the contractor, and neither party can raise the question whether there was sufficient order in writing." The ground upon which the decisions were supported was the finality of the engineer's decisions, he having been made a quasi-arbitrator of not only the nature, quality, and quantity of the works, but also of the meaning and construction of the contract and specifications. In every case known to the author where this decision has been rendered, the engineer's powers have been extended to the interpretation of the contract, and his judgment. thereof has been made final and conclusive." v. Staines Local Bd., 1 Cab. & El. 272; 2 Tharsus S. & C. Co. v. McElroy, L. R. 3 App. Cas. 1045. 3 But see Chicago S. F. & C. R. Co. v. Price, 138 U. S. 185 [1891]; and Price v. Chicago, etc., R. Co., 39 Fed. Rep. 307 [1889]. Tharsus Sulphur & Copper Works v. McElroy & Sons, L. R. 3 App. Ca. 1040; Lamprell. Billericay Union. 3 Ex. 283; Abells v. Syracuse (Sup), 40 N. Y. Supp. 233, part payment had been made; but see Brunsdon Staines Local Bd., 1 Cab. & El. 272, where the fact that weekly bills were to be delivered for extrus was regarded as a saving clause. Lepthorne v St. Aubyn, 1 C. & E. 486 [1885]; Commissioners & Water Commissioners, 5 Irish Rpts. C. I. 55 [1871]; Goodyear v. The Mayor. 35 L. J C.P. 12; see also Kirk & R. t. The E. & W. India Co.. 55 L. T. R. (N. S.), 245 [1886]. Emden's Law of Building, etc., 217, and English cases cited. 7 Commissioners e. Water Commissioners, * See Secs. 465-490, supra. If the architect's or engineer's decision as regards the value of the extras and addition is made final and conclusive, it might be that the courts would ignore the stipulation for a written order and allow the contractor to recover for all that the certificate included; but to say the least, it is doubtful. Justice Willes in one decision said: "It is true that the architect, if he does his duty, has no power to certify for extras not ordered in writing; but by the terms of the contract, if he has allowed for extra and additional work without the production of such an order, though he has decided erroneously, that is a matter for which the company have to blame themselves for selecting him." "Suppose," said he, "that in dealing with the extras the architect had disallowed an item for which the contractor had received a written order, would that be binding on the parties? Certainly it would, for they put him in the position of an arbitrator having power to disallow it."1 The court seems to have regarded the denial of any liability on the part of the company as an effort to affect the contractor by the breach of duty of the engineer for giving certificates for work not ordered in writing as required; and to have applied the rule that a contract should be so expounded as to carry into effect the intention of the parties, and that the intention was to be collected not from the language of a single clause of the covenant, but from the entire context. That if the contractor had safely omitted a thousand dollars' worth of work by direction of the engineer, and the engineer had so certified, there would be no doubt that the contractor could not recover for the omissions, and that it was a poor rule that did not work both ways; that, therefore, the obligation should be extended equally to additions as to omissions. The justice who delivered the opinion said: "By their agreement the parties have constituted the architect their tribunal to decide whether there was a written order for extra work and what was the nature of it, and his certificate assumes that there was such a written order," and against it there is no appeal.' The agreement referred to was the ordinary clause making the engineer the exclusive judge of the execution of the works and of everything connected with the performance. of the contract, and that his certificate should be binding and conclusive on both parties. In another case, where the architect's decisions were to be final only as to the measures made during the progress of the work and other questions and disputes, including the allowance of extras and additions and any other matters arising under or out of the contract, were left to further arbitration before another person, it was held that a certificate for final balance supra; Goodyear v. The Mayor, supra; Lepthorne v. St. Aubyn, supra. Goodyear . The Mayor, 35 L. J. C. P. 12; and see Marks v. Northern Pac. R. Co. (C. C. A.), 76 Fed. 941. 2 Commissioners 2. Commissioners, 5 Irish R. (C. L.) 55-66. 3 Commissioners v. Commissioners, supra. could not include extras that had not been ordered in writing and weekly bills delivered as required by the contract.' When a contract, after specifying certain works to be done for a gross sum, provided that extra work which the company or its engineer should. by any writing under his hand require to be executed, should be deemed to be included in the contract, and should be paid for at a certain rate, and that the contractor should not be entitled to make any claim for any alteration or addition which he made without such written and signed instructions, it was held by the Vice-Chancelor of England and affirmed by the House of Lords that a suit for an account of the moneys due to the contractor, in respect of the works done under the contract, was a proper subject of jurisdiction in equity." 550. English and American Practice Compared. These English cases illustrate the difference in the status of American and English engineers. In England the parties are held strictly to their agreement to abide by the engineer's decision. It is a frequent practice to refer any and every question as to the work and the contract to the engineer, and the courts enforce the obligations assumed by the parties as they would any other contract obligation. The American courts have often given a less rigid construction to this provision of contracts and have been more indulgent to contractors, and the effect may be seen in our public works and our general construction. English engineering works are said to be executed strictly in accordance with the plans and specifications and the contract. If the attorney through ignorance or inadvertence has failed to express things clearly, then the engineer interprets them as they should be. The English courts. seem to have been more alive to the interests involved and to have encouraged enterprise and development and to protect capital. While it is presumed that the American courts have less need to encourage the rapid progress of our country they have had more sympathy with the weaker. party and on the side of the oppressed, an inherent trait of a democratic people. The American cases cannot be reconciled; some having followed the more liberal American decisions and others having adopted the more stringent and rigorous application of the English law. 551. Provision Relating to Extra Work, Alterations, and Omissions, Ordered by the Owner or Engineer. "Clause: It is further agreed by and between the parties hereto that should the said owner, board, committee, council, or company require any alterations, changes, deviations, omissions, or additions in, to, or from the said plans and specifications or works, or any extra work to be done, which may be deemed necessary for the proper construction and completion of the whole work herein contemplated, they may authorize and empower the engineer or architect [or the engineer or architect, with the written consent in every case of the said owner or company, shall Brundsen v. Local Board, 1 C & E. 72 [1884]. 2 Nixon v. Taff Vale R. R. Co., 7 Hare 136. have the full power and authority], from time to time and at all times to make and issue such further drawings, and to give such further instructions and directions in writing and over his hand, as may appear to him necessary or proper for the guidance of the contractor, and for the good and sufficient execution of the works, according to the terms of the specification; and the contractor shall receive, execute, obey, and be bound by the same, according to the true intent and meaning thereof, and as fully and effectually as though they had accompanied or had been mentioned or referred to in the specification; and the engineer or architect may [within limits consistent with the nature of the contract], make such changes in the forms, dimensions, grades, and alignments or position of any of the works as the interest of the work shall seem to require; or he may order any of the works to be omitted, without the substitution of any other works, in lieu thereof, or may order additional works to be executed; and the contractor[s] shall, in pursuance of such orders and directions, execute the works in conformity therewith, but he [they] shall not otherwise make any alteraations, variations, omissions, substitutions, or additions in, from, or to the works." 552. Engineer's Authority to Direct Alterations, Additions, or Omissions is Not Authority to Order Extras except in the Manner Required by Contract. The existence of a clause in the contract to the effect that the work shall be under the supervision and direction of the engineer,' or that the engineer may direct alterations in, additions to, or deductions from the work, or that he may make other modifications in the amount and character of the work contracted for, authorizes the engineer to order extra work, but only in the manner required by the contract terms. If the contractor execute work outside of the contract without insisting that it be ordered in the manner required by his contract he cannot recover either at law or in equity.' Express stipulations are rigidly construed by the courts, and even though a contractor has bound himself to perform certain works according to specifications and drawings, and the architect has power to direct additions and omissions, he cannot recover for work done under the direction of the architect unless he can show that the architect had authority to order the work.3 If such authority is not shown the contractor has no case, even though he plead that the deviations were by direction of the company's architect or engineer. In the United States court a different rule has been maintained in at least one case, where it was held that a provision which required that claims for extra work must be made within ten days after the 1 Murphy v. Albina (Oreg.), 29 Pac. Rep. 353 [1892]. 2 White v. S. R. & S. Q. R. Co., 50 Cal. 417 [1875]; Trustees v. Platt, 5 Bradw. 567; and see also 1 Redfield on Rys. (4th ed.) 411; Kirk v. Guardians, 2 Phila. 640; Thayer . V. C. Ry. Co., 24 Vt. 440; Herrick v. V. C. Ry. C., 27 Vt. 673; Richards v. May, L. R. 10 Q. B. D. 400; Abbott v. Gatch, 13 Md 314: Stuart v Cambridge, 125 Mass. 102; Sutherland v. Morris, 45 Hun 259. Rex v. Peto, 1 Y. & J. 37. Cooper v. Langdon. 9 M. & W. 60; Emden's Law of Building, etc, 220; and see Denver & R. G. Ry. Co. v. Neis (Colo.), 14 Pac. Rep. 105 [1887]. completion of the work, or before the next monthly payment, did not prevent the contractor from recovering for extra work caused by alterations of the plans made by one party in pursuance of a clause empowering it to make such alterations. That though the work required to make such an alteration was in one sense extra work, yet, if it was caused by an alteration of the plan by the proper authorities, it was to be paid for at the contract rate for work of its class, and that orders to make alterations under such circumstances was equivalent to a written order by the party or the engineer.' If the architect has by agreement or orders induced the sub-contractors to use a different material for plastering from that specified in the contract, without the knowledge of the contractors, the latter have been held not liable for damages because such substituted material was defective;' and though the building contract requires a written order for any change which affects the cost of the building, or time of its completion, yet the contractor is not responsible for a delay caused by a change in the plans of the building, made at the owner's oral request." 553. Without Special Authority, the Engineer or Architect cannot Render His Employer Liable for Extra Work. *—The fact that the engineer, architect, or superintendent has orally ordered extra work to be done, when the contract requires that it shall be ordered in writing, will not render the company or owner liable therefor, nor enable the contractor to recover for such extra work performed. If the contractor has performed extra work upon the assurance of the engineer or architect that it will be allowed by the company or owner without the requisite formality, he must look to the engineer or architect for compensation. He cannot recover from the company. either in a court of law or a court of equity; and it seems that the architect may render himself personally liable for the value of extra work ordered by him without authority of the owner, whether he falsely or in good faith and under a mistaken belief represents to the contractor that he has the requisite authority." + However, verbal assurances by an engineer of a bridge company to a 1 Wood v. Fort Wayne, 119 U. S. 312 [1886]. 2 Robinson v. Baird (Pa), 30 Atl. Rep. 1010. Focht v. Rosenbaum (Pa. Sup.), 34 Atl. Rep. 1001. 4 Vanderwerker v. V. C. Ry. Co., 27 Vt. 125 [1854]; Woodruff v. Ř. & P. R. Co., 108 N. Y. 39 [1888]; Pashby v. The Mayor, 18 C. B. 2 [1856]; Barker v. Troy & R. R. Co., 27 Vt. 766; O'Keefe v. St. Francis Church, 59 Conn. 551 [1890]; Ahern v. Boyce, 19 Mo. App. 552; Rens v. Grand Rapids (Mich.), 41 N. W. Rep. 263 [1889]; but see Elgin v. Joslyn, 136 Ill. 525; and see Commissioners v. Motherwell, 123 Ind. 364. 5 Woodruff v. R. & P. R. Co., 108 N. Y. 39; Randell v. Trimmeu, 18 C. B. 786 [1856]. Randell v. Trimmen, 18 C. B. 786; and see Woodruff v. R. & P. R. Co., 108 N. Y. 39; also Hall v. Crandall, 29 Cal 567 [1865]; Ludbrook v. Barrett, 46 L. J. C. P. D. 798. *See Secs. 37, 39, 370-380, supra. and Sec. 768, infra. |