the checks would not show or increase when [1] The law is well established in this state that where, by the contract of the parties, a given person, such as the architect, the engineer, or the superintendent in charge of the work contemplated by the contract, is made the umpire or arbiter to determine differences which may arise in the performance of the contract, the certificate of such umpire is a prerequisite to recovery in the absence of arbitrary refusal to give it, and is final and conclusive upon the parties in the absence of fraud, misconduct, or palpable mistake on his part. Craig v. Geddis, 4 Wash. 390, 30 Pac. 396; Hughes v. Bravinder, 9 Wash. 595, 38 Pac. 209; Schmidt v. North Yakima, 12 Wash. 121, 40 Pac. 790; Zindorf Construction Co. v. Western American Co., 27 Wash. 31, 67 Pac. 374; McKivor v. Savage, 60 Wash. 135, 110 Pac. 811; State ex rel. Noble v. Bowlby, 74 Wash. 54, 132 Pac. 723. In the recent case of State ex rel. Noble v. Bowlby, the contract contained a provision as follows: parts of the work some time in August, but these were not delivered nor called for till September 12th, and some of them till October 2d; that some of the material for the first story was delivered about October 6th, some the latter part of that month, some in November, some in December, 1911, and a few pieces in January, 1912; that the other material was furnished from October 20 to December 2, 1911, and the last few pieces in January, 1912; that the defendant, at the time of furnishing the material, made no claim that the delays were caused by the failure to supply the full-sized details in time, though the claim was made at the trial; that the plaintiff was entitled to damages for the delay in the sum of $800; that the beauty of the building is marred by the improper material furnished by reason of check marks which will prove a permanent injury; that this material was at first rejected by the architects but defendant induced its acceptance by giving a written guaranty that the check marks would not spread or enlarge; that these check marks are a material damage, and will prove a permanent and substantial injury to the building, by reason whereof the plaintiff is entitled to $500 damages. Judgment was renJudgment was rendered for the defendant for the contract price, $2,165, less $1,300 damages, and for $100 attorney's fees. Both parties appealed. To avoid confusion, we shall designate the parties throughout as plaintiff and defendant. "It is mutually agreed between the parties to the contract that to prevent all disputes and Any effort to analyze the evidence in de- misunderstandings between them in relation to tail would be an almost endless and entirely any of the stipulations contained in these speciuseless task. A careful perusal of the en- fications, or their performance by either of said tire evidence convinces us that it amply sus- parties, the state highway commissioner shall be an umpire to decide all matters arising or tains the court's informal findings in every-growing out of said contract between them." thing, save the amount of damages. The Touching the effect of this provision, we evidence shows that, had the material been furnished when called for, the building could have been inclosed before winter set in and much expense and loss to the owner.thereby avoided. Both by letter and by telephone the plaintiff continually urged the furnishing of the material from about the middle of October till the latter part of December. The letters repeatedly charged the defendant with causing the delay, and threatened to hold it for damages. They evoked no reply, and we fail to find any convincing evidence that the defendant, at any time prior to suit, advanced the excuse now urged that the delay was caused by lack of the large details. There is no pretense that any claim in writing or otherwise for an extension of time for this or any other reason was ever presented to the architects, as stipulated in the seventh clause of the contract. Moreover, the evidence is far from convincing that any material delay resulted from a lack of these larger details. That some of the glazed surface of the terra cotta was materially marred by checks or cracks is fairly established. That it was accepted by the architects only on a written guaranty that said: "It is clear, we think, that the parties to this contract contemplated that somewhere there, should be an authority whose determination as to these disputed matters should be final, and it is equally clear that such authority should be the state highway commissioner. The mere fact that the highway commissioner was a state official, and as such officially was one of the parties to the contract representing the state, is not of itself, in the absence of any showing of fraud or misconduct, sufficient to render his * * *There selection as umpire nugatory. sioner, in making his awards to relator, acted is no showing here that the highway commisarbitrarily or capriciously, or was guilty of any misconduct that should disturb his award, and, until there is some such showing, the award made by him must be accepted." The same rule prevails in other jurisdicGilmore v. Courtney, 158 Ill. 432, 41 1023; Hudson v. McCartney, 33 Wis. Kennedy v. Poor, 151 Pa. 472, 25 Atl 119. In the case last cited, it is said: "This reference [to the architect] was an essential part of the contract voluntarily entered into by the parties. There was no rule or policy of law which forbade it, and neither party is at liberty to depart from it. There having been no offer to prove that the architect had acted in bad faith, his decision must be treated as final." tions. 331; both parties, and the architects' certificate as to the things referred by the contract to their initial decision as final and conclusive, and we so hold. [3] We cannot indulge the defendant's sug rely upon the architects' certificate by introducing proof of the facts upon which it was made. The good faith of the certificate was put in issue by the defendant's answer. It was apparent at the outset that at some stage of the trial the plaintiff would be called upon to prove the bona fides of the certificate. Under the pleadings, this evidence was material. Any invalid objection which could have been made at the time of its introduction would have gone only to the order of proof. No such objection was interposed. The same rule applies where the contract | pleaded the failure to demand an arbitration of the parties provides for a submission of in bar of the other's claim, that provision of matters of difference to arbitrators. North the contract should be treated as waived by Coast R. Co. v. Kraft Co., 63 Wash. 250, 115 Pac. 97: Lidgerwood Park Waterworks Co. v. Spokane, 19 Wash. 365, 53 Pac. 352. [2] It will be noted that the contract here in question provides, in the first section, that the work shall be done to the satisfac-gestion, that the plaintiff waived its right to tion of the architects, and in the ninth section that all payments shall be made upon written certificates of the architects that such payments have become due. As to these matters, there is no provision for a reference to arbitrators. The contract also provides that the architects shall determine and certify in the first instance the following matters: In section 3, the amount to be added to or deducted from the contract price because of any alterations in the plans; in section 6, the amount of loss or damage to the owner because of failure of the contractor to deliver the material at the times provided in the contract: in section 7, extensions of time to be allowed to the contractor because of delays occasioned by the owner, architects, or any other contractor, but this only upon written claim therefor made within 24 hours of such delay; and in section 8, the amount of damages sustained by either party on account of delay of the work by the other party. As to all of these things, there is a provision by reference to section 3 that, in case of dissent from the architects' award by either party, the matter shall be referred to three arbitrators, one to be selected by each of the parties, and the third by these two. It would seem that the intention is too plain to require serious argument that, in case neither party appeals to arbitration from the decision certified by the architects on any of these matters submitted to their initial decision by the terms of the contract, their decision should be final and conclusive on the parties. In fact, our decision in Dickerman v. Reeder, 59 Wash. 405, 109 Pac. 1060, goes even further, holding that, when the contract provides for an appeal to arbitration, it is incumbent upon the party, not satisfied with the certificate of the architect, to call for an arbitration under the terms of the contract or be bound by the architect's certificate. In that case it does not affirmatively appear that the contract authorized the architect to certify to the things complained of. The case here presents a much stronger ground of estoppel against the contractor to dispute the certificate, since the contract unequivocally makes the architects' certificate a prerequisite to arbitration and, by necessary inference, a prerequisite to suit. Here, however, we are not called upon to decide whether it was the duty of the plaintiff, who was satisfied with the architects' certificate, to demand an arbitration before suing for the damages so certified. Neither party having [4-6] It is undoubted law that the certificate of an architect or other umpire, though made conclusive by the contract, may be impeached for fraud or for such gross mistake as would imply bad faith. Ilse v. Etna Indemnity Co., 55 Wash. 487, 104 Pac. 787. But, in this as in other connections, the burden of proof of fraud is upon the party asserting it. Here the charges of fraud are based upon the claim that the architects were incompetent, that they colluded with the owner, that some of the items were based on averages, and that the certificate included items not referred to the architects for determination. The claim that the architect was incompetent was based upon the fact that his evidence shows that he had no technical knowledge of the process of manufacturing terra cotta, and did not know the exact time required for making it. We think this was far from sufficient to show his incompetence as an architect. The evidence shows that he had sufficient knowledge of terra cotta to detect its quality as good or bad when produced. Though in this instance he permitted his judgment to be overridden by that of the defendant's representative as to some of the terra cotta, he did so only on a guaranty that the terra cotta would not further check or mar the appearance of the building. If an architect were required to possess a technical knowledge of the process of manufacture of every kind of material going into the construction of a building, it would be impossible to sustain his certificate in any case. The charge of collusion is based upon the fact that the architect, in computing the damages caused by the defendant's delay in furnishing the material, consulted with the president of the plaintiff company, and with the foreman of construction, who had charge of the work. There is no evidence whatever that he submitted his judgment to that of either of these men in computing the damages or in determining the matters with which they would necessarily be familiar, and touching which the parties would naturally assume they would have peculiar knowledge. They had nothing to do with the renting of the building, nor can it be assumed that the parties, in making the contract, would attribute to them any special knowledge of rental values. We think that their certificate was therefore not binding on the parties in this particular, but only as to the period of time during which rents were lost because of delays caused by the defendant. of the items of damages included in his cer- | plated by the parties should be certified by tificate were based upon averages. For in- the architects; were those resulting from stance, in charging his own compensation for the extra time spent upon the job by reason of the delay, he took the average of his compensation for the whole time employed, and charged a part proportionate to the delay as added expense to the owner caused by the delay. This would have been competent evidence, had the damages rested upon proof in the first instance rather than on his certificate. A careful consideration of the evidence convinces us that the architect endeavored to make a fair estimate of the damages caused by the delay, basing his estimate on all sources of information at hand. The evidence offered in proof of the charges of fraud and collusion was far from possessing that clear and convincing quality required for the establishment of fraud. [10] It does not follow, however, that the inclusion of these two items in the architects' certificate vitiated the certificate in other respects. The certificate would be void only pro tanto. Heidlinger v. Onward Construction Co., 44 Misc. Rep. 555, 90 N. Y. Supp. 115. We know of no reason why the same rule should not apply to such a case as in case of arbitration, in which the rule is that where arbitrators pass upon matters submitted to them, but include also in their determination other matters not submitted, the latter, if separable, may be rejected, and the award will be good as to the things properly included. Doke v. James, 4 N. Y. 568; Cox v. Jagger & Belknap, 2 Cow. (N. Y.) 638, 14 Am. Dec. 522; Jackson v. Ambler, 14 Johns. (N. Y.) 96; Martin v. Williams, 13 Johns. (N. Y.) 264. [11] The other items included in the archi tects' certificate were clearly items of damage resulting directly from the delay in the [7, 8] The architects' certificate, however, did include two items which, by a fair construction of the contract, were not referred to their determination. It will be noted that, in the first section of the contract, the contractor guaranteed the terra cotta to be of even color, free from checks, square, and of even bed, and guaranteed it not to crack or check, and that, if cracks or checks should later appear, the contractor would replace the defective material without cost or damage to the owner of the building. Nowhere in the contract was the amount of damage resulting from this cause submitted to the determination of the architects. Their powers ended with an acceptance or rejection of the material. We think, therefore, that the $750 included their certificate as dam-construction of the building occasioned by ages for permanently defective terra cotta was improperly included, and hence not binding on either party. Damage from this cause, however, was set up in the complaint as a separate cause of action, and full proof submitted on both sides, independent of the certificate. This evidence was sharply conflicting. Several experts testified that all terra cotta contains fine check marks, and that this was not unusually defective in that particular. Others testified to the contrary, and that the appearance of the building was much marred by the defect. The witnesses place the damage to the building so resulting, on the one hand, at $800 to $1,000, and, on the other, at $40 to $50. Upon the whole record, we cannot say that the amount of damages from this cause fixed by the court at $500 was excessive. the defendant's default. They relate particularly to extra expense, labor and material resulting from the inability to inclose and complete the building for two months beyond the time which otherwise would have been necessary. They were proper items of damage, under the rule laid down in Creech v. Humptulips Boom, etc., Co., 37 Wash. 172, 79 Pac. 633. The increased cost of performing the work in the winter time was also damage naturally arising from the breach of the contract in the particulars referred to the architects. It was the plain intention of the parties that they should be determined by their certificate. Meyer v. Haven, 70 App. Div. 529, 75 N. Y. Supp. 261. [12, 13] The architects' certificate of a delay of two months in the completion of the building, due to defendant's default, laid the [9] The other item of damage, which we foundation for proof of damage by loss of think the architects had no authority to certi- rents during that period. We think that the fy, was that for loss of rent, which they correct measure of damages was the reasonplaced at $2,800 for the two months. We able rental value of the premises for that are clear that their authority in this particu- time. Stone v. Hunter Tract Improvement lar was confined to a certificate as to the Co., 68 Wash. 28, 122 Pac. 370, 39 L. R. A. extent of the delay. The rental value of the (N. S.) 180. The plaintiff contends that this building was a matter open to proof aliunde. should be determined by contracts for rental We are of the opinion that the damage re- and applications for rental during that pesulting from delays, which it was contem-riod, citing Jones v. Nelson, 61 Wash. 167, 112 Pac. 88. In the Jones Case, however, there! (No. 11995.) (82 Wash. 274) (Supreme Court of Washington. Nov. 16, 1914.) 1. WATERS AND WATER COURSES (§ 228*)-IRRIGATION SYSTEM-PUBLIC IMPROVEMENTS CONTRACTS-CONTRACTOR'S BOND. Where a contractor's bond to an irrigation district was not conditioned according to the requirements of Rem. & Bal. Code, §§ 1159, 1161, the contract for the work could not be construed as a part of the bond in order to render it a defense to a suit by materialmen against the district for unpaid materials furnished to the contractor; especially where the district, after the materials had been furnished, that the bond be surrendered and canceled. settled with the contractor's surety, and agreed [Ed. Note.-For other cases, see Waters and Water Courses, Dec. Dig. § 228.*] 2. WATERS AND WATER COURSES (§ 228*)-IRRIGATION DISTRICTS-IMPROVEMENTS-"OTHER MUNICIPAL CORPORATIONS." seems to have been no evidence offered as to BROWN BROS. v. COLUMBIA IRR. DIST. the reasonable rental value of the property. At any rate, that question was not discussed. The opinion merely states that there was no evidence of any applications for rooms before the completion and delivery of the building. We do not construe that decision as laying down a different rule from that clearly expressed in Stone v. Hunter Tract Improvement Co. While actual contracts and applications would be some evidence of the rental value, they would not be conclusive. Balkwill v. Spencer, 45 Wash. 600, 88 Pac. 1029. That the plaintiff would suffer by delay to the amount of the reasonable rental value of the property, the defendant knew when it entered into the contract. It could not be expected to know that specific contracts for rental would be offered or entered into for specific amounts. The reasonable rental was clearly the measure of damages contemplated by the parties when they made the contract. The trial court took this view and admitted evidence of the rental value. The plaintiff's president testified that the rental value of the building, beginning January 1st, when it should have been completed, was $1,400 a month; that the lower story had been rented prior to that time at an agreed rent of $750 a month, to a tenant who was ready to move in January 1st, but was delayed until March 1st because the building was not finished. A rental agent, who has had the building in charge for rental ever since it was completed, estimated the rental value of the two upper floors, containing 12 apartments, at $550 a month, beginning January 1, 1912, at which time he stated there was a, fair demand for such property. He testified, however, that he had been able to rent only seven of these apartments, producing an income of $320 a month. Apparently none of these estimates was of the net rental value. None of them took into account the expenses connected with the operation of the building. We think that the evidence fairly justifies a finding of no more than $1,000 a month as the reasonable rental value of this property. The damages certified by the architects, less the two items improperly included, and less also the contract price of the work, amount to $1,071.11. The damages found by the court because of the defective materials, which we do not feel warranted, on the evidence, in disturbing, is $500. The damage by reason of loss of rents for the two months, which we find fairly sustained by the evidence, is $2,000. The judgment is reversed, and the cause is remanded, with direction to cancel the defendant's claim of lien and enter judgment in favor of the plaintiff for $3.571.11, the aggregate of these sums. any board of county commissioners of any coun- [Ed. Note.-For other cases, see Waters and Department 1. Appeal from Superior Action by Brown Bros., a corporation, against the Columbia Irrigation District. Judgment for plaintiff, and defendant appeals. Affirmed. Jesseph & Bourland, of Colville, and Osee W. Noble, of Kettle Falls, for appellant. Danson, Williams & Danson, of Spokane (Geo. D. Lantz, of Spokane, of counsel), for respondent. CHADWICK, J. Defendant is organized under the irrigation district law of the state of Washington, and, as such, let a contract to the Spokane Concrete Company for the construction of an irrigation system for the district. The Spokane Concrete Company purchased supplies and materials from plaintiff. Its account not having been paid, it began an action against the defendant, which GOSE, MAIN, and CHADWICK, JJ., con- appeared and demurred to the complaint. The demurrer was overruled, and defend cur. ant, standing upon its demurrer, has appeal-couraged at common law. In so far as the ed to this court from a judgment as prayed claimant is concerned, the contract between for. the public or municipal corporation and the If [1] It is the contention of the defendant contracting party is wholly immaterial. that it cannot be held to answer to the suit it were not so, a contract and bond might be of plaintiff for two reasons: First, because so drawn as to work an exemption under it took a bond from the Spokane Concrete the statute by providing that a settlement Company conditioned for the payment of all or payment by the municipal corporation to claims for labor, material, and supplies, as the contracting party would exonerate the provided in Rem. & Bal. Code, §§ 1159-1161; bond, or, as in this case, by providing that or, second, if it be held that the bond taken no action could be maintained on the bond did not comply with the statute, the defend- by any one other than the obligee. ant corporation is not one of those specified within Rem. & Bal. Code, § 1160, and, there being no common-law liability, the complaint does not state a cause of action. The bond runs to the defendant, and is not conditioned as the statute requires. It is admitted that the bond is insufficient for want of condition, unless the contract is read into and made a part of the bond. The obligation of the bond is: Although assailed by counsel we think, nevertheless, that the case of Puget Sound Brick Co. v. School District, 12 Wash. 118, 40 Pac. 608, is controlling. It was there conceded, and we think it is so here, that the bond was not one upon which an action could have been maintained by the one who had furnished material to the contractor, and it was also admitted, as it is here, that the bond was insufficient if construed independ school district had not protected itself as required by statute, and was liable to one who had furnished supplies to the contractor for the erection of the building. Greenfield Lbr. & Ice Co. v. Parker, 159 Ind. 571, 65 N. E. 747. "Now, therefore, the condition of this obliga-ently of the contract. It was held that the tion is such that, if the principal shall faithfully perform all the terms and conditions of said contract and indemnify the obligee against any loss or damage directly arising by reason of the failure of the principal to faithfully perform said contract, then this obligation shall be void; otherwise to remain in full force and effect. Fifth. That no right of action shall accrue upon or by reason hereof, to or for the use or benefit of any one other than the obligee herein named; and that the obligation of the surety is, and shall be construed strictly as, one of the suretyship only, shall be executed by the principal before delivery, and shall not, nor shall any interest therein or right of action thereon, be assigned without the prior consent, in writing, of the surety." The terms of the contract relied upon by defendant to sustain its theory are: It is contended that the Puget Sound Brick. Company Case is in conflict with the later cases of Wheeler, Osgood & Co. v. Everett Land Co., 14 Wash. 630, 45 Pac. 316, and Crowley v. U. S. F. & G. Co., 29 Wash. 275, 69 Pac. 784. But these cases, like others cited, were waged between the contracting parties. The statute controlling this case was in no way invoked. Moreover, the defendant has itself construed the bond as personal to itself. It is alleged in the complaint, and is admitted as a fact, that after the sale and delivery of the material furnished by plaintiff, the defendant entered into an agreement to settle with its surety, and agreed that the bond should be surrendered, and that it was then and there canceled and surrendered to the surety company. We surrendered to the surety company. think it is clear that plaintiff has a right of Counsel cite many cases holding that a action against the defendant for its failure bond given to insure the faithful perform-to take a statutory bond. "And that all excavations shall be made and back-filled, and all work done and materials furnished hereunder by the first party hereto at its own cost and expense and without cost or charge to the second party, and that no person or persons performing work or labor hereunder or furnishing material hereunder shall have any lien against the second party therefor, but that all work done and materials furnished in the carrying out and completion of this contract shall be done exclusively on the credit of the first party hereto." Whether the de [2] Coming to the second proposition: Session Laws 1887-88, c. 12, § 1, p. 15, reads as follows: "Whenever the board of county commissionand common council of any incorporated city ers of any county of this territory, or the mayor or town or the tribunal transacting the business of any municipal corporation. ance of a contract is to be read in connection fendant has a right of action against its surewith, and as a part of, the contract when ty is a question we do not express any opinan action is brought to recover thereon. We ion upon. have no doubt of the rule. It has been held by this court in a number of cases. Friend v. Ralston, 35 Wash. 429, 430, 77 Pac. 794; McDonald v. Davey, 22 Wash. 366, 60 Pac. 1116; Trinity Parish v. Etna Indemnity Co., 37 Wash. 515, 79 Pac. 1097; Martin v. Surety Co., 53 Wash. 290, 101 Pac. 876. But in all of those cases, and the rule is universal, the action was waged between the parties to the contract. The bond the statute requires is in aid of the laborer, materialmen, and those who furnish supplies to be used upon public works, and is designed to give a remedy that was not known or en * Section 2 of the act as originally drawn, provided that "if any board of county commissioners of any county, or the mayor and common council of any incorporated city or town, or tribunal transacting the business of any municipal corporation," shall fail to take a bond, such county, city, or town or other |