Rosenthal v. Turner

<p>Abstract of the Decision.</p> <p>1. Building and construction contracts, § 15*—how construed as to payment. Provision in contract for alterations on a building, that a certain percentage of the amount due was not to be paid “until the expiration of thirty days, after the perfect completion of said work,” etc., held to refer only to the final payment which was to be retained as security for the faithful performance of the contract, and therefor inapplicable to other payments due under the contract.</p> <p>2. Building - and construction contracts, § 103*—when architect’s certificate prima facie evidence. Where a contract provided for the issuance of an architect’s certificate and that payments were to he made to the extent of eighty-five per cent, of the value of the work as it progressed, in an action for the sum covered by a certificate stating on its face that it was issued under the terms of the contract and which was within the eighty-five per cent, limitation, it was held that the certificate was prima facie evidence that so much .of the work had been completed under the contract as to entitle plaintiff to payment of the amount for which it was issued, and together with evidence of nonpayment was sufficient to make out plaintiff’s case.</p> <p>3. Witnesses, § 212*—question not within direct examination. Questions on cross-examination which are not within the scope of the direct examination are properly excluded.</p> <p>4. Appeal and ebbor, § 1235*—when acquiescence bars review. Although under Practice Act, sec. 81 (J. & A. 8618), where a cause is brought up for review upon a stenographic report, it is not necessary to preserve an exception, still the record must show that the ruling complained of was an adverse one, hence cross-errors based upon instructions not to allow interest will not be considered where the attitude of counsel for the complaining party indicated acquiescence therein.</p>