unless the company should put in force a clause to the like effect in their contract with the Defendant. Now I think that this was a matter which might fairly be left to the master. As it stands, it appears that at the time the contract was signed there was an oral promise at variance with the written agreement. I do not know whether what then occurred comes within the definition of fraud. There was a promise on one side, and if the promise on the other side be equally binding then it is a mere matter of contract. Be that as it may, I am of opinion that the question was one quite within the province of the master. WILLES, BYLES and KEATING, Js., concurred. Rule refused. 1865. TRICKETT υ. GREEN. GOODYEAR and Another v. THE MAYOR, ALDER- Wednesday, November 15. The Defendants, the corporation of a borough, resolved to build a new Building Conmarket-house, and the Plaintiffs' tender for the works having been tract. accepted, they signed the drawings, specification and conditions which Extras. had been prepared and signed by the Defendants' architect. By articles Additional of agreement the Plaintiffs agreed that they would, to the satisfaction of work. the Defendants' architect, execute the works described in the specification Architect's ceraccording to the drawings, designs and specification, &c., and would tificate. perform all the conditions appended to the specification: provided Corporation. that no deviation should be made from the drawings and specification, either in the way of extras or omissions, without a written authority from the architect, the value of such alterations to be ascertained by measurement by the architect, and priced at the contract prices; that no claim for charges for any extra or additional work should be made by the Plaintiff's without production of the order of the architect, signed by him at the time when the instructions for such work were given. And the Defendants agreed to pay to the Plaintiffs 3,4247., subject to deductions and additions for extras or omissions, on application from the Plaintiffs, accompanied by the certificate of the architect that the sum applied for was proper: the opinion of the architect with respect to the value of such works to be final and binding on the Plaintiffs. The 19th condition was, that if any dispute arose between the contractor and the town council as to the meaning of the specification or conditions of the contract, or the works, the decision of the architect as to the nature, quality and quantity of the works should be final, and should be binding on both sides, as regarded the value of any extra or additions, as to which he should be regulated by the contract prices. The total amount claimed by the Plaintiffs "in respect of the 1865. GOODYEAR V. MAYOR. &C. OF works contracted for and connected therewith" was made up of three subjects: first, a sum in respect of the contract amount; second, a sum for extras under the contract; third, a sum for works independent of the contract. After the completion of the works, the architect certified that the Plaintiffs were entitled to a certain sum for extras, but his certificate did not show the items. Some of the extras were alterations according to drawings either signed or approved by the architect, others according to a letter signed by him, others were verbally ordered by him. Of the works independent of the contract, a pump and drains were constructed in pursuance of a resolution of the town council; and they were useful and necessary. 1. Held: As to extras: (1.) That the certificate of the architect was final, and therefore the Defendants could not raise the question whether any of the extras allowed without his order in writing, as required by the agreement, had been duly ordered within the meaning of the contract. (2.) That the allowance by the architect as to value was conclusive on the Plaintiffs. 2. As to works independent of the contract: That they were connected with the works contracted for, and therefore the certificate of the architect, as to their value, was binding on the Plaintiffs. 3. Quære, whether an order by the corporation under their seal would be necessary to entitle the Plaintiffs to recover in respect of the works independent of the contract, if they were not within the certificate of the architect? SPECIAL case stated by an arbitrator in pursuance of a Judge's order. The action was brought on the 22nd January, 1858, to recover 2,6321. 7s. 7d., the balance alleged by the Plaintiffs, who are builders in partnership, to be due to them from the Defendants, who are the corporation of the borough of Weymouth and Melcombe Regis, for building for the Defendants a general market house in the parish of Melcombe Regis, within that borough. In 1854 the Defendants resolved to build a new general market house in the parish of Melcombe Regis, within the borough of Weymouth and Melcombe Regis. They appointed Talbot Bury to superintend the building for them. Talbot Bury prepared the drawings and designs for the market house, a specification of the works to be done and the materials to be provided for the same, and the conditions under which the works were to be performed. On the 10th August, 1854, the Defendants advertised for tenders for erecting the market house according to the drawings, designs, specification and conditions. The Plaintiffs, amongst others, tendered for the 1865. GOODYEAR บ. works, and offered to perform the same for 3,4241., which tender was accepted by the Defendants. Upon the tender being accepted the Plaintiffs signed the drawings prepared MAYOR, &c. OF by Talbot Bury, and the specification and conditions: WEYMOUTH. which were also signed by Talbot Bury as the Defend ants' architect. On the 11th September, 1854, articles of agreement were made between the Plaintiffs of the first part, E. W. Cole and J. Cole of the second part, and the Defendants of the third part whereby, after reciting the advertisement, the tender, the acceptance of it by the Defendants, and the signing by the Plaintiffs and Talbot Bury of the drawings, specification and conditions, and that E. W. Cole and J. Cole had agreed to join in those presents as sureties for the due performance of the contract by the Plaintiffs, it was witnessed that the Plaintiffs did thereby ratify and confirm their tender, and did jointly and severally covenant and agree with the Defendants that they would in good, lasting, and workmanlike manner and by or before the time or times thereinafter mentioned, to the entire satisfaction of the architect for the time being of the Defendants, execute the several artificers' works described in the specification, according to the true intent and meaning of the drawings, designs and specification, and according to the instructions therein respectively contained or to be reasonably inferred therefrom, and such explanatory instructions and drawings as the architect for the time being should from time to time during the progress of the works give and furnish to the Plaintiffs, and would in all things abide by and perform all the conditions appended to the specification. That the clerk of the works appointed in writing by the architect should in his absence have full power to judge of the qualities of the materials, of the manner of executing the various kinds of work and the proper mode of conducting them, and that in such particulars the Plaintiffs should follow the directions of such clerk: Provided always 1865. GOODYEAR V. MAYOR, &c. OF that no deviation should be made from the drawings and specification, or the directions therein contained or to be reasonably inferred therefrom, either in the way of extras or omissions, without a written authority from the architect; and in case any part of the work should be altered without that authority, or should in the opinion of the architect be executed in a slight or unsatisfactory manner, the same should be immediately taken down and re-erected at the expense of the Plaintiffs. That all such deviations as might be required to be made by the written directions of the architect should immediately be made, and such alterations, whether extras or omissions, should not in any way vitiate or render void that contract; but the value of such alterations should be ascertained by fair measurement by the architect and priced out at prices by which the contract for the market house was made out, for which purpose the Plaintiffs should produce to and on the execution thereof leave with the architect the priced bill of quantities by which the estimate of the Plaintiffs was made, and such amount so ascertained should be added to or deducted from the amount of that contract; but no claim upon the Defendants for charges for any extra or additional work should be made by the Plaintiffs without production of the order of the architect for such extra work, signed by him at the time when the instructions for such work were given. . . . And it was further witnessed, that the Defendants did thereby promise and agree with the Plaintiffs that they would pay unto the Plaintiffs the sum of 3,4247., subject to such deductions and with such additions for extras or omissions or otherwise as therein before mentioned, in manner and at the times following, that was to say, that from time to time during the progress of the works, on application in writing from the Plaintiffs, they should within one week after such application receive the amount of three-fourths in value of the work then done, estimated at the prices on which the Plaintiffs' contract had been framed, provided such application were accompanied by the certificate of the architect that the sum applied for was a proper sum to be paid to the Plaintiffs under the terms of that contract, and that the amount of the value of the work done exceeded the amount applied for by one-fourth, it being understood that the opinion of the architect with respect to the value of such works should be final and binding on the Plaintiffs; and further that half the balance which appeared to remain due to the Plaintiffs on the completion of that contract should be paid to them. within two months of the date of the architect's certificate of the due completion of such works, and the remaining half within six calendar months from the date of the certificate, unless the architect should advise the Defendants. to keep a sum of money in hand for the purpose of making good any defective work that might become apparent after that date. And it was thereby agreed that the clerk of the works should furnish the Plaintiffs with copies of the original drawings, which copies he or they should have liberty from time to time to compare with the originals remaining in the custody of the clerk of the works or such other person or persons as the architect should appoint. The articles of agreement and the drawings, specification and conditions were to be taken as part of the case. The conditions were headed: "General conditions of contract to be appended to the specification for building the above-named market house for the town council of the borough." The following are material: "1. The several works described in the said specification or referred to herein shall be executed by the said parties according to the true intent and meaning of the different drawings and designs made for that purpose and herein referred to, and such other as may be hereafter provided." 1865. GOODYEAR v. MAYOR, &c. OF |