Camp v. Neufelder , 49 Wash. 426 ( 1908 )

Fullerton, J.

On February 15, 1905, the respondent Neufelder entered into a contract with the respondent F. Mc-Lellan & Co., by the terms of which the latter agreed to furnish the necessary materials and reconstruct and remodel, according to plans and specifications agreed upon, a certain building owned by the former, situated in the city of Seattle. F. McLellan & Co. sublet the furnishing and putting in place of a part of the required materials to the appellants, Camp and TeRoller, and among the enumerated articles to be furnished and put in place by them were certain prism lights. These were described in the specifications in the following language :

“All sidewalk lights to be 3x3 inches reflecting prism lens set in cement; all frames to be what is known as bar-lock construction. All joints must be made and guaranteed water tight. These lights shall be of the W. B. Jackson make, or equal, and shall be constructed to carry a safe load of 350 lbs. per sq. ft.”

The contract provided that the work must be performed to the satisfaction of the architect named in the contract, who had the right to approve or reject any and all work. When the appellants in the course of their work reached the sidewalk, they informed the architect that they had several prism lights equal to the W. B. Jackson light which they wished to submit to the judgment of the architect that a selection might be made therefrom. The architect refused to examine or consider them, stating in effect that there were no prism lights equal to the W. B. Jackson light, and that no other or different light would be accepted or approved by him. The appellants thereupon put in the W. B. Jackson lights, at a cost, as they claim, of some six hundred dollars more than lights equal to the W. B. Jackson lights would have cost them, and subsequently claimed this amount as an extra, filing a lien upon the building to secure the payment of the same. This action was instituted to foreclose the lien so filed. At the trial the court refused to allow the appellants to show that there are lights equal to the W. B. Jackson light that could have been procured and put in by them at a saving to themselves; holding that since the lights were actually put in and were lights permitted by the contract, no right of action accrued to them to recover the extra costs. Judgment was entered accordingly, from which this appeal is taken.

The respondents present the case in this court on somewhat different grounds from that taken by the trial judge. Although they do not entirely abandon the position taken by him, they contend, (1) that a proper construction of .the specifications calls for the installation of the W. B. Jackson lights if they are procurable, and the substitution of others only in the case that these lights cannot be obtained; and (2) that since the contractors were bound to complete the building to the satisfaction of the architect, his decision on the question of the character of the lights to be put in was final, and the contractors for that reason have no cause of complaint.

But it has seemed to us that neither the reason given by the trial judge nor the reasons suggested by the respondents justify the judgment entered. The mere fact that the contractors put in the W. B. Jackson lights at the instigation of the architect does not estop them from claiming of the owner the loss sustained thereby. The architect, while he stood in the relation of umpire in some of his aspects under the contract, stood in the relation of agent for the owner in this instance. That is to say, he was the person selected by the owner to determine the character of the material that should go into the work, and in this respect was the owner’s agent, and in the performance of this duty was as much bound to act fairly and impartially as the owner would himself be bound had there been no selection of an intermediary. The contractor, therefore, had the right to treat the direction given by the architect as a direction given by the owner, and can recover any loss suffered because thereof if the direction was so far arbitrary as to be without the terms of the contract. No doubt the contractors could have very properly put in lights equal to the W. B. Jackson lights, and recovered on the contract by showing that the architect’s obj ections thereto were arbitrary and not in the exercise of an independent and honest judgment, but this was not their only remedy; they were justified in obeying the architect’s instructions, and in seeking to recover the loss sustained thereby.

Nor can we agree that the respondents’ interpretation of this clause in the specifications is correct. Manifestly the appellants were given the option either to put in the W. B. Jackson lights or lights equal to the W. B. Jackson lights. And this being so, the installation of either would be a compliance with the contract.

The last objection made by the respondents, while of more moment, seems to us also to be without foundation. While it is true that the contractors were bound to perform to the satisfaction of the architect, yet it was equally true that they had a right to demand that he exercise an independent and honest j udgment, and that he should not arbitrarily refuse to consider or determine matters submitted to his judgment. If the contractors did in fact produce lights equal to the W. B. Jackson light thejr had the right not only to install them but the right to have the architect’s approval of them before they were installed, and it was the architect’s duty to give them the benefit of his honest judgment in passing upon the character of" the lights produced. If he did not do this, but arbitrarily refused to consider or pass upon them, and arbitrarily directed that the W. B. Jackson lights be put in, his conduct was so. far a fraud upon the rights of the contractors as to entitle them to submit to the courts the question whether or not the lights they desired to substitute were lights proper to be installed under the contract, and whether or not they have suffered loss by the architect’s action.

The judgment is reversed, and the cause remanded for a new trial.

Hadley, C. J., Crow, Root, and Dunbar, JJ., concur.