## Facts

- A contractor and a homeowner executed a written construction contract for a residence.
- The contract required payments, including final payment, only upon the architect’s certificate.
- The contract also required changes from the specifications to be approved in writing by the architect.
- The work was practically completed, but the architect refused to issue a final certificate, giving written notice that specified items did not conform to the contract.
- Disputes included (1) the type of corner beading to be used where the specifications required corner beads but did not specify a particular type, and (2) the use of chestnut window sashes rather than specified white pine, allegedly installed at the architect’s direction.
- The homeowner hired another contractor to perform additional work to meet the homeowner’s preferences and paid for that work.
- After deducting the cost of that additional work, the architect issued a certificate stating that a balance of $1,100 remained due to the contractor.
- The contractor sued to recover the unpaid balance; during the litigation, the contractor died and his widow was substituted as plaintiff.

## Issues

1. Whether a contractor who substantially performed in good faith could recover the unpaid balance despite the absence of an architect’s completion certificate.
2. Whether the architect’s refusal to certify was binding, or could be disregarded if not fair and impartial or influenced by collusion with the owner.
3. Whether the contractual requirement that changes be authorized in writing was waived by the parties’ conduct.

## Decision

- The Supreme Court of Pennsylvania affirmed the judgment for the contractor.
- The jury was properly permitted to find substantial performance and award the contract price less deductions for minor defects.
- The architect’s refusal to issue a completion certificate was not conclusive if the refusal was not fair and impartial or was influenced by the owner.
- The jury’s finding that the written-change requirement was waived by the parties’ course of dealing was upheld.

## Legal Principles

- In building contracts, substantial performance in good faith permits recovery of the contract price minus the cost to correct minor defects or deviations.
- A contract clause making an architect’s certificate a condition of payment does not bar recovery where the architect’s decision is not impartial or is influenced by the owner’s unreasonable demands.
- A contractual requirement that changes be approved in writing may be waived by the parties’ conduct, including the architect’s directions and the parties’ course of performance.
- The distinction between non-willful deviations and willful, intentional departures is central to determining whether substantial performance supports recovery.

## Conclusion

The court held that a contractor who acted in good faith and substantially performed could recover the unpaid balance with appropriate deductions, notwithstanding an architect’s certificate clause, where the architect’s refusal was not impartial and the parties’ conduct supported waiver of a strict written-change requirement.


Fay v. Moore, 104 A. 686 (Pa. 1918)