The appellants assail the judgment upon numerous grounds and contend that the facts of the case as found by the referee are against the clear preponderance of the evidence.

The contention of the appellants first in order is to the effect that the plaintiff has failed to perform some of the express conditions of the contract which are in the nature of conditions precedent to be performed by him before he can institute an action to enforce any claim under the contract. The argument is made that the plaintiff is in default in failing to furnish the defendants a written undertaking as to the roofing and the cement work and in failing to give a bond as stipulated to guarantee such work for ten years; that he failed before commencing action to clear the building and premises of all claims and liens for material furnished and *417labor performed in tbe erection of tbe building by subcontractors, materialmen, and laborers; and tbat be did not produce tbe written certificate of tbe arcbitect and superintendent named in tbe contract, wbicb was to be given only when tbe plaintiff bad fully executed tbe contract and finished tbe completed structure “to tbe full and complete satisfaction of said John L. Koster, arcbitect and superintendent.” Proceeding to tbe consideration of these claims in tbe order above stated, tbe first inquiry is: Does tbe contract provide, as a condition to tbe institution of an action by tbe plaintiff to enforce any of its provisions, tbat tbe plaintiff should furnish an undertaking and bond guaranteeing tbe cement work for floors, walks, etc., for tbe period of ten years, and tbat a written guaranty for tbe same period as to tbe roofing should be given before tbe final certificate was to be issued ? These requirements are not specifically mentioned or embraced in tbe contract. Tbe contract provides only for tbe furnishing of the materials as specified, for executing tbe work as outlined and specified, and completing tbe structure within tbe time designated and to tbe satisfaction of tbe superintendent, Mr. Xoster. We must resort to tbe specifications to ascertain tbe significance of these obligations. In tbe written contract we find nothing expressly stipulated to indicate tbat tbe parties bad an intention to make tbe performance of these obligations of guaranteeing tbe work for tbe future a condition upon wbicb payment for tbe material furnished and tbe work and labor performed was to be made. Payment by tbe owner for such material and labor is expressly stipulated for by tbe parties without any reference to or dependence upon tbe prior giving of such guaranties. This is tbe fact not only as to tbe final payment but also as to tbe payments of tbe instalments of tbe contract price. Tbe record also shows tbat tbe parties so treated tbe matter in their dealings. Tbe plaintiff procured no written guaranties and tbe defendants made no objection on account thereof; nor did they demand *418that they he furnished before final payment for the construction of the building as agreed. Neither did the defendants insist thereon by way of defense in this action until after the specifications had been received in evidence on the trial and after the plaintiff had tendered the guaranties. Under these circumstances it is clear that the parties intended these obligations to he independent covenants and separate from the agreements requiring the plaintiff to furnish the material and labor and to complete the building within the time limit and imposing on the defendants the obligation to pay the amount stipulated. The defendants’ superintendent at no time predicated his refusal to issue his certificate for the amount due the plaintiff under the contract upon plaintiff’s failure to furnish these written guaranties. This clearly negatives the claim that the defendants stood on such a right. Under these circumstances the plaintiff had a right to institute an action for the recovery of the amount due him for the material and labor furnished in constructing the building without first furnishing these written guaranties.

It is further contended that the action was prematurely brought because the plaintiff failed to turn over the structure “free and clear of all liens and claims for materials furnished and work and labor done, or otherwise, arising from the erection, completion, and finishing of said building, in favor of any subcontractor, materiahnan, workman, or laborer.” It is suggested that the structure was not turned over to defendants free and clear of all such liens and claims, though it appeared that no demand, in the nature of a lien, for materials or labor by subcontractors, that could be enforced against the premises, existed in law, and that this agreement meant that, regardless of any right of a subcontractor to enforce a lien against the premises, the plaintiff was to pay such claims before he was entitled to recover his compensation. This contention rests upon an unnatural and strained meaning of the context of this stipulation. We are persuaded that the par*419ties used tlie terms in their common and ordinary sense, that they were correctly interpreted by the trial court and referee, and that they are sustained in the conclusion that the building was free and clear from all such “liens and claims” when it was turned over to the defendants.

The referee found upon the evidence adduced that the architect and superintendent arbitrarily and unlawfully refused to perform his duty as a disinterested arbitrator between the parties regarding disputes arising under the contract and to issue a final certificate showing that the plaintiff had substantially completed the building called for by the contract and was entitled to the balance justly due thereon, and that such certificate was withheld by Mm to hinder, defraud, and delay the plaintiff in recovering what was due him under the contract. The court’s conclusion upon this subject rests mainly upon the findings of fact that the plaintiff had substantially completed the building by October 13, 1907, that the defendants accepted and occupied it before suit was-instituted, that before the commencement of the action the defendants declined to pay any balance due the plaintiff in. excess of the sum of $424.16, and that the arbitrator and superintendent neglected and refused to ascertain and allow the amount the defendants LinTce were entitled to as deductions for the items wherein there were departures from the-contract and the amount of the items for which the plaintiff was entitled to recover as extras. If the record sustains the court in its affirmance of the referee’s report upon these various issues between the parties, then the conclusion that the superintendent was guilty of defaults and omissions in the-discharge of his obligations is abundantly sustained in the-record. It is manifest that in such a state of the transaction the plaintiff was entitled to have the differences between the-parties to the contract adjusted and to have a final certificate issued to him for the balance justly due him within a reasonable time after October 13, 1907, the date it is found that *420the building was substantially completed, and that a neglect and refusal to do these things operated to the wrong of the plaintiff. Laycock v. Moon, 97 Wis. 59, 72 N. W. 372; Laycock v. Parker, 103 Wis. 161, 79 N. W. 327; Ashland L., S. & C. Co. v. Shores, 105 Wis. 122, 81 N. W. 136. A detailed examination of the evidence upon these issues has convinced us that the referee’s findings, as approved by the trial court, are not against the clear preponderance of the evidence.

Appellants- vigorously assail the finding that the building was substantially completed on October 13, 1907, and aver that there were many important omissions from the specifications in materials used and essentials in design. The items specified under this contention were, however, proven to have been approved by Bernatski as defendants’ superintendent, and by mutual agreement were accepted by the parties in the negotiations which resulted in the contract of August 14, 1907 (dated April 8, 1907), and they cannot now be made the basis for a claim of nonperformance. Other items in this class which the defendants claim are departures from the specifications are too insignificant to furnish a basis for a claim of want of substantial performance. The referee allowed the defendants $31.25 for these items.

The claim that the plaintiff is shown to have made no effort in good faith at performance of the contract is wholly unfounded in fact. The evidence tends to show that he made all reasonable efforts to carry out his part of the agreement, and that any want of compliance on his part was due to unavoidable conditions incident to the erection of such a structure and to delays occasioned by changes in the plumbing. Hence, the court properly held him free from default in carrying out the contract in good faith.

The argument is made that Bernatski was not selected by the defendant Paul Linke to represent him in the construction before the second contract was made in August. This, however, must fail because the plaintiff and Bernatski testify *421positively to tbis fact, and they also testify that be in fact so acted while Mr. Linke was present and at bis direction.

Tbe contention that tbe court’s findings to tbe effect that tbe plaintiff was excused from completing tbe building witbin tbe time fixed by tbe contract, namely, September 15, 1907, is against tbe evidence, cannot prevail, for it appears that tbe superintendent ordered changes in tbe plumbing in tbe building that in fact caused a delay of several weeks and necessarily extended tbe time for completing tbe building beyond September 15, 1907. It also appears that tbe plaintiff made all reasonable effort to expedite tbe work incident to such changes.

Other exceptions to tbe court’s findings have been examined and we find tbe evidence satisfactorily sustains such findings. It can serve no useful purpose to make a detailed reference thereto. We are satisfied that tbe referee made just allowances to tbe defendants for all deviations and omissions from tbe plans and specifications, that tbe plaintiff was entitled to the amount found for extras, and that be was entitled' to judgment for tbe balance awarded him.

We find no reversible error, and tbe judgment must stand.

By the Court. — Judgment affirmed.