Di Menna Constrruction Co. v. Anchor Post Iron Works

The plaintiff entered into a sub-contract to perform certain concrete work for the defendant in accordance with a contract which the defendant had with the park department. Under that contract it was provided that the decision of the architect of the department should be final and conclusive and that the work should be done to the satisfaction of the architect, and work not done to the satisfaction of the architect should be made good by the contractor. It appears that on April first the defendant received notice from the architect that the work done by the plaintiff was unsatisfactory and must be removed. The defendant then terminated the plaintiff’s contract and removed the work as ordered by the architect. Thereafter, the plaintiff brought this action and the defendant set up the failure of the plaintiff to perform the work in accordance with the specifications of the park department and the rejection by the engineer i'n charge as a defense and also as a counterclaim. The reply did not set up any fraud or bad faith on the part of the architect or engineer but merely denies knowledge or information sufficient to form a belief as to these allegations.

*623At the close of the case the trial judge submitted to the jury only one question of fact stating: '“You have a very concise question of fact presented to you as to whether the work was properly done or not; that is practically the whole question in this.case.” Under the contract made between the parties the question of whether the work was properly done or not was not a question for the jury but for the architect to decide.

The parties by their contract had provided that his decision was to be “ final and conclusive ’ ’ and the courts have in all cases held that such provisions were valid and enforcible and the trial judge should have so charged. It is true of course that even a final and conclusive decision may be impeached for fraud and bad faith and there is, I think, some evidence that the engineer or architect in this case did act in bad faith, but, even if such an issue could be raised under the present pleading in this case, it was never submitted to the jury.

Judgment should therefore be reversed and a new trial ordered, with costs to appellant to abide the event.

Guy and Whitaker, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.