The architect's final certificate is the document in accordance with which the accounts are closed, and should be wade up very carefully. It should be given only after all the work is done, the extras noted, and, if allowed, a reasonable price fixe(l therefor. The architect should at this time be informed of all variations or all omissions in the performance of the contract, and the rights of the owner in respect to such are to be carefully protected. If the variations are of a serious nature, the owner may not be obliged to accept or pay for the work. On the other hand, the owner may take the work as it stands, but demand and, if necessary, recover at law, damages for the deviations from the contract. Where the contract is not exactly carried out, the architect should ordinarily refuse a final certificate. In some cases it may be proper for hint to give a certificate stating all omissions or variations fro1i] the contract, and reserving to the owner all rights on account thereof. This latter course might lie called for by the terms of a particular contract, or it night be rendered proper by agreement of the par ties. Where a conditional certificate of this sort is given. it may not be such a certificate as is required by the contract as a condi tion precedent to payment; for, as shown above, where a certifi cate of certain form is called for, a certificate in materially different form is not sufficient.
When an architect's certificate is nude a condition precedent to payment, what is the position of the contractor if it is refused If it is refused for good cause, of course, the contractor cannot recover the payment in question. If, on the other hand. the con tractor has faithfully performed his part of the contract, and can show that a certificate was refused through the fraud of the owner, then the failure to produce a certificate will be excused, and the contractor may recover in spite of it. Between those cases where the refusal is justified and those where it is fraudulent are the cases where the refusal is neither justified nor fraudulent, but able. It is often stated that where the refusal is unreasonable as well as where it is collusive or fraudulent, the contractor may re cover without the certificate, after proving, of course, the unreason able character of the refusal. Such is the law in some states. On the other hand, it is argued that the agreement of the parties gives effect to the granting or refusal of a certificate by the architect chosen, and that it changes the agreement to -undo the effect of his decision merely because to a judge or to a jury that decision appears un reasonable. It has accordingly been held in some jurisdictions that nothing short of fraud will excuse the non-production of the certificate. The authorities are not uniform on the question
whether fraud by the architect alone excuses non-production of the certificate or whether fraud is an excuse only if the owner participates in it.
The contract may provide that the work shall be done to the . satisfaction of the architect, and that his certificates shall be given only when he is satisfied with the work. The effect given to such a contract is different in different jurisdictions. The point of dif ference is on the question whether the contractor is bound to satisfy the peculiar tests and opinions of the architect specified, or whether such work as would satisfy a reasonable man in the architect's position would be sufficient, so that any refusal of a certificate un der these circumstances world be regarded as merely whimsical and unreasonable, and so in some jurisdictions not to prevent the contractor's recovery.
The contractor may also recover payment without producing the certificate which was made a condition precedent, if the owner has waived his right to insist upon the condition. A California case held that where a building had been completed and occupied apparently without objection from the architect or owner, although no certificates had been given, the occupancy was evidence that the owners waived the requirement of a certificate and payment was due on the contract. In a Wisconsin case it was held that pay ment of 50 per cent of the price without demanding the certificate was a waiver of the certificate as to that part and also as to the other part, unless notice had been given that the certificate would be required for the remainder of the work. Of course each of these cases was determined on the special circumstances under which it arose. It is certain that occupancy alone does not neces sarily constitute a waiver of the condition as to the certificate. The question of waiver of this condition is subject to the ordinary considerations of the law upon that subject.
It is generally held that if by the death of the architect it be comes impossible to procure the certificate the non-production will not prevent recovery by the contractor.
The next question that arises is as to the effect of the certifi. Cate when once given. It is not finally binding on the parties in such a manner that its findings cannot be contradicted, unless the provisions of the contract render the certificate of binding effect. As the certificate depends on the contract for its effect it can have force only to the extent therein provided for, and a certificate pre tending to settle matters not left to the architect's decision is in effective as to such matters.