Contract, Building contracts, In writing. Waiver.
Where a building contract in writing contains a provision that "If any extra work is required, a price for the same must be agreed upon and approved in writing by the architect before such work is begun," the architect has no authority to waive the condition precedent of his approval in writing or to bind the owner by any oral order, and the contractor cannot recover from the owner for extra work and disbursements merely agreed to and approved by the architect orally.
BRALEY, J.
By the terms of the contract: "If any extra work is required, a price for the same must be agreed upon and approved in writing by the architect before such work is begun." It was not within the authority of the architect to waive this provision, and although he orally approved all extra work and the disbursements for which recovery is sought, the defendant never has waived the contract nor ratified his acts.
It follows that the plaintiffs cannot recover. Stuart v. Cambridge, 125 Mass. 102.
Order dismissing the report affirmed.