Contract, Building contract. Set-off. Damages, Recoupment. Pleading, Civil, Answer. Architect. Arbitrament and Award.
Where a contract for the erection of a building provides that if the contractor fails to perform his part of the contract the owner may terminate the employment of the contractor and finish the work himself and if the unpaid balance of the amount to be paid under the contract shall exceed the expense incurred by the owner in finishing the work, such excess shall be paid by the owner to the contractor, but if such expense shall exceed such unpaid balance, the contractor shall pay the difference to the owner, and where a subsequent clause of the contract fixing the contract price provides "that the sum to be paid by the owner to the contractor for said work and materials shall be" the amount named, "subject to additions and deductions as hereinbefore provided," the contractor in suing on this contract, after he has failed to complete his work and the building has been finished by the owner, in order to recover must show affirmatively that the balance due him exceeds the amount of the expense properly incurred by the owner in finishing the work, and for this purpose expenses properly incurred by the defendant must be deducted although their amounts were determined after the commencement of the action and for that reason they could not be included by the defendant in a declaration in set-off. Such expenses are not deducted by way of recoupment and may be shown by the defendant under a general denial.
Where a building contract provides that the expenses incurred by the owner of a building in finishing it after the contractor has failed to do so "shall be audited and certified by the architects, whose certificate thereof shall be conclusive upon the parties," in the trial of an action upon the contract, if it appears that the architects' certificates of such expenses, which are put in evidence by the defendant, were made properly and seasonably and there is no evidence of bad faith in their issue, they are conclusive as to all matters within the authority of the architects.
SHELDON, J.
The second, third and fourth rulings asked for by the plaintiff apparently were given, but the judge ruled that the amount of the items mentioned, so far as proved, if not allowed in set-off, could properly be used in reduction of the contract price. This was correct. The promise of the defendants in Article IX. of the agreement sued on was not to pay to the plaintiff the sum therein mentioned, but to pay said sum "subject to additions and deductions" as before provided in the agreement; and these items are properly to be included in such deductions. Accordingly they were not deducted from the plaintiff's claim by way of recoupment, but were deducted from the contract price to ascertain the sum with which the plaintiff was to be credited. For the same reasons it is evident that the plaintiff's fifth request was given.
The judge correctly ruled that the architects' certificates, there being no evidence of bad faith in their issue, were conclusive as to all matters within their authority. Hebert v. Dewey, 191 Mass. 403. White v. Abbott, 188 Mass. 99. These certificates were properly and seasonably made; and the judge rightly gave them their full effect.
The exception to the refusal to give the first request has not been argued; and we treat it as waived.
Exceptions overruled.