condition seems immaterial, as a pure question of construction, if the language of the condition is wide enough to cover the situation.56 $797. Unreasonable but not fraudulent refusal of certificate. Some American courts have gone beyond the limits suggested in the preceding sections and have held that any unreasonable refusal of the certificate by the architect or engineer excuses performance of the condition and the builder becomes entitled to recover without production of any certificate.57 "In Hebert v. Dewey, 191 Mass. 403, 411, 77 N. E. 822, Knowlton, C. J., said: "It is plain that, in making the contract, it was understood between the parties that the architect would act in good faith in the performance of this part of his duty. In legal effect, the contract is as if their understanding in this particular had been written into it, as one of its terms. If, under such an agreement, after the full performance of the contract, the architect wilfully and fraudulently refuses to act, or dies, or becomes disqualified, and there is no provision for such a case, the question arises whether the contractor is entitled to receive the contract price, the fact of performance being shown in some other way, or whether the entire contract falls to the ground, and the parties are left to enforce their rights under a quantum meruit. It is a general rule that if an implied condition that fails is of the essence of the contract, and enters largely into the consideration, in such a case that there can be no substantial performance under the changed conditions, the whole contract will fail, and the parties may have reasonable compensation for what they have done in reliance upon it. Butterfield #. Byron, 153 Mass. 517, 27 N. E. 667, 12 L. R. A. 571, 25 Am. St. Rep. 654. But the provision in this case for the ascertainment of their rights, in reference to the construction of the building called for by the contract, is of a different kind. It is a part of the machinery provided for the ascertainment and adjustment of their rights in reference to the matters to which the contract relates. It is provided to be used only upon an implied condition that it will be available for use. If, through the death or incapacity of the architect, or his wilful refusal to act, it becomes impossible to adopt this method of determining the rights of the parties, other means may be adopted, on the grounds that this no longer remains as an essential term of the agreement. In all substantial particulars the contract is complete without the provision for obtaining a final certificate, and, in the case supposed, it should be treated as if the provision were stricken from the contract. 57 Scully v. United States, 197 Fed. 327; Anderson v. Imhoff, 34 Neb. 335, 51 N. W. 854; Nolan v. Whitney, 88 N. Y. 648; Crouch v. Gutmann, 134 N. Y. 45, 31 N. E. 271, 30 Am. St. Rep. 608; Thomas v. Stewart, 132 N. Y. 580, 586, 30 N. E. 577; Macknight Flintic Stone Co. v. City of New York, 160 N. Y. 72, 86, 54 N. E. 661; Whelen v. Boyd, 114 Pa. 228, 6 Atl. 384; Sullivan v. Byrne, 10 S. C. 122; Norfolk, etc., Ry. Co. v. Mills, 91 Va. 613, 22 S. E. 556; Johnston v. Bunn, 114 Va. 222, 76 S. E. 310; Washington Bridge Co. v. Land & River Imp. Co., In connection with these cases may be considered decisions on contracts for the sale of land calling for a title satisfactory to the purchaser's attorney, and holding that a marketable title need not be accepted, if in fact the attorney was dissatisfied. 58 The weight of American authority in regard to building certificates, however, supports the proposition that incompetency or unreasonableness does not invalidate an honest decision on the part of the architect; but many cases qualify this by saying that in case of "gross mistake" on the part of the architect or engineer, the certificate is excused.59 The 12 Wash. 272, 40 Pac. 982; Taft v. Whitney Co., 85 Wash. 389, 148 Pac. 43; Bentley v. Davidson, 74 Wis. 420, 43 N. W. 139; Wendt v. Vogel, 87 Wis. 462, 58 N. W. 764. 58 Hudson v. Buck, 7 Ch. D. 683. In Wilhelm v. Wood, 135 N. Y. S. 930, 933, 151 N. Y. App. Div. 42, it was said: "The defendants in making their proposition to accept certainly had a right to make any condition precedent which they thought proper. They had a right to make their acceptance depend upon any fact which they might name, and, having elected to make their acceptance to depend upon the approval of their own attorney, they did not undertake to guarantee that their attorney was a competent lawyer, or that he would, upon any given state of facts, approve. They simply undertook to take over the lease of the gas company's property if their attorney approved of the legality of the lease and the franchises, and their only obligation in the matter was not to interfere with the securing of this approval. His duty was measured by his duties to his clients, and the plaintiff had no claim upon him, other than that he should not be a party to a conspiracy to deprive the plaintiff of his rights under the contract. It was his duty, no doubt, to his clients, to advise them to the best of his ability upon the facts as thus presented to him, but it was his opinion as to the legality of the transaction which was made the condition of its performance on the part of the defendants, and no court or jury has any right to make any other or different condition. The plaintiff's assignor accepted this condition, and he and his associates expended their money in the transaction upon their faith that they would be able to satisfy Mr. Tomlinson of the legality of the entire transaction." With these decisions should be contrasted cases where the purchaser's own satisfaction or approval is stipulated for. Here the construction that reasonable satisfaction only is required is almost inevitable. Roberts v. Kimmons, 65 Miss. 332, 334, 3 South. 736, 737; Vought v. Williams, 120 N. Y. 253, 24 N. E. 195; Moot v. Business Men's Inv. Assoc., 157 N. Y. 201, 52 N. E. 1, 45 L. R. A. 666; Dean v. Williams, 56 Wash. 614, 106 Pac. 130. 59 Chicago, etc., R. Co. v. Price, 138 U. S. 185, 34 L. Ed. 917, 11 Sup. Ct. 290; J. H. Sullivan Co. v. Wingerath, 203 Fed. 460, 121 C. C. A. 584; Frisco Lumber Co. v. Hodge, 218 Fed. 778, 134 C. C. A. 456; Kennedy v. United States, 24 Ct. Cl. 122; Hatfield Special School Dist. v. Knight, 112 Ark. 83, 164 S. W. 1137; Dingley v. Greene, 54 English decisions allow no such excuse.60 It is obvious that no principle of construction can justify the American decisions. The courts which render them are excusing the builder from performing the condition, rather than awarding him judgment because he has performed it, or because the situation which has arisen is not within the meaning of the condition. That justice requires relief against the condition where a forfeiture will be caused, without fault on the part of the builder, may be admitted; but in considering what facts warrant relief, it would be well to observe the analogy of the decisions of equity. If the architect or engineer arrived at his conclusion under a clear mistake as to material facts, relief seems proper; but where his knowledge of the facts of the case is adequate, though his judgment may be unreasonable, it is a total change of the terms of the contract for the court to permit the judgment of a jury to be substituted for that of the architect or engineer for which the contract provided. To allow recovery on the contract wherever a jury finds the architect or engineer has been unreasonable, is doing nothing less than this. Equity has certainly never given relief from harsh contracts on any such broad basis. Any relief against such forfeiture as may be caused by the expert's decision in such a case should be given on the theory of quasi-contract.61 § 798. A builder may be liable though he has received an architect's certificate. The mere fact that an architect's certificate is made a condition precedent to the liability of the owner, does not estab Cal. 333; George S. Chatfield Co. v. O'Neill, 89 Conn. 172, 93 Atl. 133; Fowler v. Deakman, 84 Ill. 130; Gilmore v. Courtney, 158 Ill. 432, 41 N. E. 1023; Littell v. Webster County, 152 La. 206, 131 N. W. 691; Merrill v. Gore, 29 Me. 346; Baltimore & Ohio R. Co. v. Brydon, 65 Md. 198, 57 Am. Rep. 318; Palmer v. Clark, 106 Mass. 373; Beharrell v. Quimby, 162 Mass. 571, 39 N. E. 407; White v. Abbott, 188 Mass. 99, 74 N. E. 305; Hebert v. Dewey, 191 Mass. 403, 414, 77 N. E. 822; Shaw v. First Baptist Church, 44 Minn. 22, 60 Smith v. Howden Union (Q. B. D.), 2 Hudson on Building Cont. (4th ed.) 156. 61 See infra, § 1475. lish necessarily the fact that the builder has fulfilled his main obligation to build according to the plans and specifications and in a workmanlike manner. The owner may have protected himself doubly: first, by the builder's promise, and, second, by a condition requiring an architect's certificate before payment is due. In such a case even though the condition requiring a certificate is fulfilled, a builder will still remain liable for breach of his promise.62 Very commonly, however, by the terms of the building contract, the certificate is in the nature of an award binding both parties. This award is made a condition precedent to the builder's right of recovery, but when made is conclusive on both parties, in the absence of collusion or fraud or such other reason as in the particular jurisdiction is held sufficient excuse for the non-performance of the condition.63 "To make such a certificate conclusive requires plain language in the contract; it is not to be implied." 64 "64 An award by an architect like an award by any other arbitrator may be made a condition precedent to liability on a promise.65 62 Mercantile Trust Co. v. Hensey, 205 U. S. 298, 51 L. Ed. 811, 27 Sup. Ct. 535; Glacius v. Black, 50 N. Y. 145, 10 Am. Rep. 449. See also Roberts v. Bury Improvement Commissioners, L. R. 5 C. P. 310; Central Trust Co. v. Louisville, etc., Ry. Co., 70 Fed. 282; Fontano v. Robbins, 18 App. D. C. 402, 22 App. D. C. 253; Adlard v. Muldoon, 45 Ill. 193; Hennebique v. Boston Cold Storage &c. Co., 230 Mass. 456, 119 N. E. 548; Bond v. Mayor, etc., of Newark, 19 N. J. Eq. 376; Memphis, etc., R. R. Co. v. Wilcox, 48 Pa. St. 161. 63 As to what amounts to sufficient excuse see the decisions cited in the previous sections where the certificate was held conclusive on both parties; also, e. g., the following cases where the certificate was held conclusive: Sweeney v. United States, 109 U. S. 618, 27 L. Ed. 1053, 3 Sup. Ct. 344; Martinsburg, etc., R. Co. v. March, 114 U. S. 549, 29 L. Ed. 255, 5 Sup. Ct. 1035; Chicago, etc., R. Co. v. Price, 138 U. S. 185, 34 L. Ed. 917, 11 Sup. Ct. 290; Sheffield, etc., R. Co. v. Gordon, 151 U. S. 285, 38 L. Ed. 164, 14 Sup. Ct. 343; Mayor & City Council of Baltimore v. Poe, 132 Md. 637, 104 Atl. 360; Wyckoff v. Meyers, 44 N. Y. 143. 64 Mercantile Trust Co. v. Hensey, 205 U. S. 298, 309, 51 L. Ed. 811, 27 Sup. Ct. 535. See also Central Trust Co. v. Louisville, etc., Ry. Co., 70 Fed. 282, 284. 65 See infra, §§ 1719 et seq. Sometimes it is merely reference to arbitration not a valid award which is the condition, though this is more usual in insurance policies than in building contracts. In Second Soc. of Universalists v. Royal Ins. Co., Ltd., 221 Mass. 518, 525, 109 N. E. 384, the court said of such a condition: "This is a valid provision. It is not an arbitration of the whole controversy, but only a stipulation that the amount of the damage § 799. Where a debt has arisen, a condition relating to the time of payment which becomes impossible is dispensed with. Even in England where the courts have been most strict in enforcing conditions according to their strict terms, it has been held that where by the transfer of title to property, a debt for the price has arisen, liability will not be excused because the contract fixed a time for payment of the price which has become impossible of performance without fault of the seller. Thus, where goods are shipped under a contract which provides that payment shall be made on arrival of the goods or at a fixed time after their arrival, the buyer is liable for the price, if title passed to him on shipment, though the goods never arrive, being lost in transit.66 And where a leasehold interest was sold and the title had passed, the buyer was held liable for the price after the property had been destroyed, though payment was by the contract to be made on delivery of possession, and possession had never been delivered.67 shall be ascertained summarily. It is a lawful agreement and is not obnoxious to the principle that contracts to oust courts of their jurisdiction are not binding. Reed v. Washington Ins. Co., 138 Mass. 572; Lamson Consolidated Store Service Co. v. Prudential Fire Ins. Co., 171 Mass. 433, 434, 50 N. E. 943. "It is to be noted, also, that although the amount of liability or loss must be fixed by reference, the return of the award or the making of a valid award is not a condition precedent to any right of action in law or equity to recover for such loss.' It is 'the reference' to these disinterested men and not 'the award' by them which is made the condition precedent. Here again the instant policy differs from other insurance contracts which have been before the courts. Many forms require the award as a condition precedent. That was the requirement of the policy in Hutchinson v. Liverpool & L. & G. Ins. Co., 153 Mass. 143, 144, 26 N. E. 439. See, for example, also Hamilton v. Liverpool & L. & G. Ins. Co., 136 U. S. 242, 34 L. Ed. 419, 10 Sup. Ct. 945; Commercial Union Assurance Co., Ltd., v. Dalzell, 210 Fed. 605, 127 C. C. A. 241; Scott v. Avery, 5 H. L. Cas. 811, 845, 851; Caledonian Ins. Co. v. Gilmour, [1893] A. C. 85, 90, 96; Spurrier v. LaCloche, [1902] A. C. 446; Jureidini ບ. National British & Irish Millers Ins. Co., Ltd., [1915] A. C. 499, 505, 506; Wolff v. Liverpool & London & G. Ins. Co., 21 Vroom, 453; Early v. Providence & Washington Ins. Co., 31 R. I. 225, 76 Atl. 753, 140 Am. St. Rep. 750; Nurney v. Fireman's Fund Ins. Co., 63 Mich. 633, 30 N. W. 350; Vernon Ins. Co. v. Maitlen, 158 Ind. 393, 63 N. E. 755." 66 Fragano v. Long, 4 B. & C. 219; Alexander v. Gardner, 1 Bing. (N. C.) 671. 67 J. S. Potts Drug Co. v. Benedict, |