Even after a certificate has been given which according to the contract is finally binding on the parties. it may be impeached on various grounds so as not to bind the owner to pay for the work certified to. Fraud or mistake are generally grounds for avoiding it. The wilful disregard by the architect of his duty has been held a ground for avoiding the certificate; as has the concealment of defects by the builder, and collusion between the contractor and one of the parties. As to just what facts constitute a ground for disregarding the certificate, the law differs in the different states. The law in some states is that if an architect gives a certificate for work which subsequently shows imperfections which have concealed from the architect and which he could not have discovered by the use of reasonable care in inspection, such certificate does not waive such imperfections, and the owner need not pay the full contract or certificate price for such work. The law in other states. on the other hand, is that nothing short of fraud or collusion be tween the contractor and the architect will excuse the owner from payment according to the certificate. Some states even go so far as to say that even fraud will not excuse the owner. In such cases. however, the owner would have a claim against the architect for his Ioss. Of course each case depends on the wording of the con tract. Where under the contract the certificate is merely an ex pression of the architect's opinion that the work is ill compliance with the provisions of the contract, such certificate cannot be con. elusive evidence of the performance of the contract. The question can arise only ender contracts which provide that each party shall he bound by the certificate. Where on any ground the certificate can he disregarded, the owner is enabled to make a claim for de fects or omissions which would be excluded were he bound by the certificate. The fact that the work certified to is not entirely com pleted, or that the architect has estimated the work done pursuant to the contract as less than the work actually done, or made a mere mistake or error in judgment, does not constitute fraud vitiating the certificate, or raise a valid ground for impeachment. There may therefore be negligence on the part of the architect in giving a certificate which would give rise to a right of action against him on the part of the owner, but which would not affect the binding nature of the certificate; for the architect would be responsible to his employer for his failure to use care and skill in giving the cer tificate as in other parts of his work.
To resume the subjects last treated: The architect's certifi cate has, as between owner and contractor, whatever force is as signed to it by their contract; if they have made it merely a con dition precedent to payment, then it is important only to entitle the contractor to recover, and he may even recover without it under certain circumstances varying in different jurisdictions; the certi ficate would hare no further effect in binding the parties. and would be only ,fercie evidence of the facts stated in it; it could be contradicted by the owner, if, for instance he claimed damages for defects the existence of which was inconsistent with the certificate. If, however, the parties have agreed to be bound by the certificate, then the owner could not recover in such a case unless he was prepared to show that there were grounds for disre garding the certificate, as above stated.
A question might arise as to an architect's power to withdraw or to alter a certificate once given. If there were such cause as would furnish ground for disregarding the certificate, such as a fraudulent concealment from the architect, clearly he should be at liberty to withdraw it. Should the architect, however, attempt to withdraw or alter a certificate merely to correct his own mistake. and should the contractor refuse to submit to the desired change. the architect would be put in an awkward position. The certificate given would be sufficient under the contract to fix the rights of the parties, and there would be no ground for setting it aside. For his own negligence he would be answerable to the owner; but there seems to be no ground on which he could insist on a return of the certificate.
Where the certificate is based on measurements, as is fre quently the case with interim certificates, it would sewn that the contractor has a. right to be notified and to be present at the taking of such measurements even though it is not expressly provided for in the contract. As the courts are not unanimous upon the question of the necessityf of such notice, it would be well, although not in all cases legally obligatory, for the architect, whenever he knows there is or may be a misunderstanding between the parties, to give them opportunity to be heard before his decision.
As to the signing of certificates where a firm of architects are employed, the signature of a certificate should of course be in the firm name. Whether one partner has power to sign is an ordinary question of the law of agency as applied to the subject of partnership. It would seem that a partner who had charge of the work undoubtedly has such authority. If the various mem bers of the firm have participated in the work it would of course be only prudent that all should be consulted and expressly author ize the issuance of the certificate.
The subject of the architect's liability to the contractor for unjustly refusing to give a certificate is treated under the heading be Liability ".
As Regards the Settlement of Disputes. As already shown, an agreement between owner and contractor that the architect's certificate shall be conclusive between them is binding, and under such an agreement the architect's certificate can be disregarded only on certain grounds. The building agreement may in like manner give binding effect to the architect's determination of various matters, and such agreement may be binding upon the parties. In connection with such agreemer`.s, however, the legal principles before stated in connection with arbitration clauses (un der the heading "Legality of Contract") is important. Under the law as there stated, general provisions for arbitration of dis puted points are not binding, The proper way of drawing these clauses for the settlement of disputed matters is to make the de cision of the architect a condition precedent to any action upon a disputed point. The decision of the architect may then be made conclusive upon both parties, and in accordance with the intention of the parties will be enforced by a court.