CALDWELL & DRAKE V. SCHMULBACH.

But it is insisted by defendant that the contract required the work to be completed and to be satisfactory to architects and owner before final payment could be required, that such work was not so completed, and therefore plaintiffs' bill must be dismissed as prematurely brought, and the three cases of Barrett v. Coal & Coke Co., 51 W. Va. 416, 41 S. E. 220, 90 Am. St. Rep. 802, Plumber Co. v. Carr, 54 W. Va. 272, 46 S. E. 458, and Lunsford v. Wren, 64 W. Va. 458, 63 S. E. 308, are cited in support of this proposition. In the first case the matter in controversy was 500,000 brick to be manufactured in a certain manner, “and to the satisfaction of the general superintendent of defendant company or his authorized representative." The right of the superintendent to reject the brick, in absence of fraud, was held to be absolute, but recovery for the actual work done upon quantum meruit was upheld; the failure to complete the work being without the fault of the plaintiff. In the second case cited the controversy arose over a heating plant to be installed, for which "the final payment shall be made when the work is completed satisfactory to owner and architect." The right of the owner or architect to reject the work in the absence of bad faith was held to be absolute. In the third case, where a church building was involved, the court held:

"Although the rate of compensation to be finally paid such contractor is to depend on completion of the contract, yet if completion thereof is prevented by the insolvency of the owner, or his neglect or refusal to make the payments as required by the contract, the contractor will thereby be excused from completing the contract on his part, and entitled to his compensation for the part performed."

None of these cases it seems to me meet the facts disclosed in this case. The mere statement of the proposition that the owner under such a contract for mere trifling defaults or at his own will may declare himself dissatisfied, and thereby be permitted to retain, as in this case, over $20,000 of the contract price for all time and at the same time take possession of and receive the use and benefit of the work done, refutes its soundness in morals and good conscience. It has therefore long since been held that substantial compliance with the terms of the contract is all that can be required. This is the holding of the Supreme Court of Appeals in this state in West V. Building Co. v. Saucer, 45 W. Va. 483, 31 S. E. 965, 72 Am. St. Rep. 822. The The claim of the defendant contract price in this case was $231,698. for omitted and defective work is $6,329.06. A number of these items are disputed by the contractors, who claimed in their notice of lien that the owner was only entitled on this account to a credit of $406.80. Admissions made in testimony may increase this somewhat. On the other hand, the contractors claimed $26,122.97 for extras. The owner disputing this claim to the fullest extent, however, substantially admits his liability for $6,155.40 on account of these extras. were to admit the whole demand of the owner for the omitted and defective work of $6,329.06, it would be less than 3 per cent. of the whole work represented by the contract price of $231,698 alone, and, if we deduct from this claim the extras admitted by him of $6,155.46, a balance of $173.66 would remain, for which it is contended he is entitled to retain the final payment of over $20,000! Such a position by

If we

the owner is entirely untenable upon its face, if it were not further refuted by such further facts that the owner has taken possession, installed numerous tenants, and is receiving the rents, issues, and profits of the building in large sums. Here, again, it seems to me, the ruling in Jefferson Hotel Co. v. Brumbaugh (C. C. A.) 168 Fed. 867, is exactly in point, and must control. The contention of the defendant in this particular must therefore be overruled.

Some questions arise as to the allowance for extras that must be determined. By the specifications it was provided that "no allowance will be made for extra work, unless the same shall be previously authorized by the issue of an order signed by both the owner and architect"; while the contract itself provides that such extra work should be allowed for only "upon the written order of the architect or owner." Some extra work was done upon the written order of the architects alone, and this the owner now disclaims all liability for insisting that the written order of the architects was worthless unless he joined therein. This contention must be overruled for at least this reason: These specifications were first prepared, as shown by the terms of the contract. They could not have been made a part of the contract, as they were, if they at the time did not exist. The contract, therefore, was the final meeting of the minds of the parties, the final agreement. By the terms of the contract the architects were constituted the agents of the owner and the power to issue these written orders was vested in either the owner himself or in the architects alone. The law will presume that this clause changed and superseded that contained in the specifications; that failure to correct the latter to conform to this change was a mere oversight. The extras performed, therefore, upon the written orders of the architects alone, must be allowed for at their just values.

But it is insisted that some extras were performed by verbal orders of the architects, and allowance for these should be made because the owner has taken possession of the property, is deriving the benefit thereof, and must be held to have waived the requirement in writing of the orders therefor. This contention is most vigorously contested here by the defendant owner. Touching allowances for extras generally, the words of the court in the Jefferson Hotel Case are pertinent here:

"The temptation on the part of contractors to recoup losses on improvident contracts by claims of this kind is frequently present and strong. It is therefore the clear duty of courts to carefully scrutinize such demands and allow them only upon clear and satisfactory evidence sustaining them."

It therefore becomes the duty of the contractor claiming extras to show clearly (a) that they are in fact such; (b) that the prices charged therefor are reasonable; and (c) that they were furnished in compliance with the exact terms of the contract, or else under a waiver of such terms constituting in effect a new and different contract in relation thereto. While these propositions are true, it is not for a moment to be questioned, as held in Copeland v. Hewett, 96 Me. 525, 53 Atl. 36, that, "where a contract provides that neither party thereto shall have any claim for alterations or additions unless first particularly described

in writing, * it is competent for either party to waive this provision intended for his benefit," and, "however evidenced, a contract remains in force until it is superseded by a later one inconsistent with it, and no longer; and one who has agreed that he will only contract in writing in a certain way does not preclude himself from making a parol bargain to change it, and there is no more force in an agreement in writing not to agree by parol than in a parol agreement not to agree in writing." Insurance Co. v. Earle, 33 Mich. 143; Canal Co. v. Ray, 101 U. S. 522, 25 L. Ed. 792; Bartlett v. Stanchfield, 148 Mass. 394, 19 N. E. 549, 2 L. R. A. 625. This last case is exactly in point here. It is there held:

"A written contract for building a house, stipulating that no charge for extra work or materials shall be made, unless ordered in writing, will not prevent the contractor from recovering for extra expense incurred on the express agreement of the other party to pay for it, or on his request therefor, under circumstances implying a consent to be liable for it, irrespective of the written contract. Parties cannot, by contract, tie up their freedom of dealing with each other."

If, therefore, extra work was performed by the contractors here, under express oral contract upon the part of the owner personally or by and through his agents, the architects, or under such circumstances implying a consent to be liable therefor, such extra work should be allowed for, but for reasons stated the evidence should be clear, and the burden is upon the contractor to produce it.

But, finally, in this connection, it is insisted that as to these extras the contract provides that, in case of dissent of either party to the values allowed therefor by the architects, the determination thereof should be submitted to arbitration which was not done. Therefore this action was prematurely brought, and must be dismissed. The contention is not tenable for these reasons: First. Independent of all questions of extras, the contractors had a clear right to file their mechanic's lien within a limited time, fixed by statute, against this building for the balance of the contract price, which the owner disputed and refused to pay, and they had the further right, within a limited time, also fixed by statute, to institute this suit in equity to enforce such lien. These extras were contemplated by the contract. They were performed with labor and material furnished either under its express terms or by new and additional oral contracts in connection with the erection of this building and for which the contractors were also entitled to a lien upon the same terms and conditions. Equity having jurisdiction in part will assume it over all and settle the whole controversy by its own methods of procedure which are plenary and comprehensive. Second. Because, as held in Foster v. McKeown, 192 Ill. 339, 61 N. E. 514:

"In an action to recover for extras furnished under a building contract providing that, in case the valuation of such extras by the architect should not be agreed to, the matter should be submitted to arbitration, neither a report of arbitrators nor an offer to arbitrate as to such extras need be shown as a condition precedent to a right of recovery without the architect's certificate, where such certificate was refused, not because of any disagreement as to valuation, but by order of the owner of the property."

This leaves us but one other matter involving legal propositions to consider. As hereinbefore indicated, the lot of ground upon which this building was to be and was erected was surrounded by other buildings, and it was very soon apparent after excavation for the foundation was commenced that extraordinary and expensive measures would be required to protect an adjacent building from damage and destruction. The architect by written order directed these necessary measures to be taken by the contractors. Large sums were expended in this way, clearly extra and not contemplated by the contract. Much of this work, however, was done outside of the exact limits of the owner's lot in strengthening and securing the walls of this adjacent building. It is now insisted that, while there may be a separate personal liability upon the owner for this work in favor of the contractors, the lot of ground and its building so erected under this contract thereon cannot be held liable under a mechanic's lien for such work done outside of the limits of the lot. I cannot agree with this contention. The work in a very technical sense may have been done on ground outside the exact line of the lot, yet it was absolutely essential for it to be done in order that the contract be complied with and the building be erected on the lot. Suppose the wall of the German Bank Building or the building itself had collapsed and fallen into the excavation on this lot. Would not the removal of the débris therefrom have been necessary to the erection of the building? This was precisely what would have happened in all possibility if the wall of this building had not been reinforced. It was not work provided for by the contract directly, but was expressly within its terms touching extras. The condition of this abutting wall could not be known until it was disclosed by the excavation on this lot, and wherein was there any practical difference in the character of the work necessary to cause this wall to stand and the removal of its débris after it had fallen? In this connection it may be proper to note that the courts of this state have changed their position touching mechanics' liens. It was at first held that, this remedy being unknown to the common law, a strict compliance with and construction of the statute was necessary. Mayes v. Ruffners, 8 W. Va. 384; Stout v. Golden, 9 W. Va. 231. It is now held that the statute must be given a fair and liberal construction as to the creation of the lien and its enforcement. United States Blowpipe Co. v. Spencer, 40 W. Va. 698, 21 S. E. 769. Even under the old ruling, in Bodley v. Denmead, 1 W. Va. 249, it was held that "a stack erected in a building used as a porkhouse for the joint purpose of the porkhouse and generating steam and running machinery in a distillery attached thereto, and which can be used as a distillery only in connection with the porkhouse, must be regarded as a structure necessary to both establishments and as a part thereof, although the porkhouse may be used independently of the distillery"; and in that case. a mechanic's lien for the stack in the porkhouse was sustained against the distillery lot and building. For similar decisions of other states, see Wilcox v. Woodruff, 61 Conn. 578, 24 Atl. 521, 1056, 17 L. R. A. 314, 24 Am. St. Rep. 222, and note; Menzel v. Tubbs, 51 Minn. 364, 53 N. W. 653, 1017, 17 L. R. A. 815; Maryland Brick Co. v. Spilman, 76

CALDWELL & DRAKE V. SCHMULBACH.

Md. 337, 24 Atl. 297, 17 L. R. A. 599, 35 Am. St. Rep. 431; Sergeant v. Denby, 87 Va. 206, 12 S. E. 402.

In addition to this, the Circuit Court of Appeals for this Fourth Circuit in the case of Canton Roll & Machine Co. v. Rolling Mill Co., 168 Fed. 465, 93 C. C. A. 621, construing our West Virginia statute, has gone farther, in my judgment, in its liberality towards the upholding of mechanics' liens and proceedings to enforce them than has any other court in this country. In that case the contractor for machinery for a tin plate plant contracted to furnish, among other things, 24 chilled rolls absolutely and 24 additional ones, "six pairs to be delivered with the mills, balance when required." Of these last 24, 12 were furnished, and the remaining 12 were not required. On June 25, 1903, the contractor filed its mechanic's lien in the county court clerk's office of Monongalia county, setting forth its account and attached to which was the usual affidavit setting forth that it had ceased to furnish machinery under the contract upon a certain date. Upon this lien, so sworn to and recorded, it instituted in the state court its suit to enforce it against the lot and plant. After it had instituted this suit, it discovered that it had filed its declaration of lien one day too late to comply with the statute, and thereupon it dismissed this suit. (See opinion of court below in the case 155 Fed. 321.) Nearly a year after, when title to the property had passed out of the Tin Plate Company and vested in a trustee in bankruptcy, this contractor knowing this fact, without further order, shipped the extra 12 rolls provided for by the contract, and then recorded a new declaration of lien for its whole account including these 12 rolls, and thereupon instituted its suit in the Circuit Court of the United States to enforce this last declaration of lien, the sole allegation touching which in its bill was:

"Your orator is entitled to and has filed a mechanic's lien for all its said claim of $14,889.98, with interest as aforesaid, against said real estate and manufacturing plant, in accordance with the laws of the state of West Virginia, and claims and is entitled by virtue thereof to a lien on said property."

These 12 additional rolls were never accepted, were never delivered on the ground or nearer to it than the railroad depot, never, of course, installed in the building, and in fact were not expected to be by the contractor when shipped because it knew of the company's bankruptcy. The Circuit Court of Appeals, however, reversing the decree of the court below dismissing the bill, held these rolls to be an integral part of the mill machinery not necessary to be actually installed; that the contractor was not estopped by the filing of the first lien and the oath attached thereto fixing the date when it "ceased furnishing" machinery under the contract, nor from, nearly a year after, "furnishing" this additional machinery in this way, and declaring and asserting a new lien for the whole account, and, further, that the pleading quoted above was sufficient upon which to enforce it. But it may be insisted that such rulings are in direct conflict with those contained in Davis v. Alvord, 94 U. S. 545, 24 L. Ed. 283; Van Stone v. Stillwell & Bierce Mfg. Co., 142 U. S. 128, 12 Sup. Ct. 181, 35 L. Ed. 961; Liberty, etc., B. & L. Co. v. Furbush & Son Machine Co., 80 Fed. 631, 26 C. C. A. 38; Withrow Lumber Co. v. Glasgow Inv. Co., 101 Fed. 863, 42 C. C. A. 61; McGugin v. O. R. R., 33 W. Va. 63, 70, 71, 10 S. E. 36; Cen