#### Hill v. Cone.

Opinion delivered March 19, 1928.

*702 Moore, Gray & Burrow, for appellant.

Downie & Schoggen, for appellee.

*703Kirby, J.,

(after stating the facts). Appellants insist that, upon a correct construction of the provision of the building contract relative thereto, the amount per day provided and required to be paid.and allowed to be charged against the contractor for the time required to construct and finish the improvement beyond the time it was agreed to be finished, should have been charged, and that the court erred in not rendering a judgment for the full amount claimed as liquidated damages by the board for such delay, and this contention must be sustained. The authorities are reviewed and the rule for assessment of liquidated damages again announced in Robbins v. Plant, 174 Art. 639, 297 S. W. 1027, 31 L. R. 491.

Said article 6 binds the contractor to the completion of the building not later than June 24, 1926, and to the payment to the owner as liquidated damages the sum of $50 per day for each day the building remains uncompleted after said date; that additional time, for delays beyond the contractor’s reasonable control, is only to be allowed when approved in writing by the architect, and that it is expressly understood that said sums of money are agreed upon as the amount due the owner as liquidated damages for the owner’s inability to use said building.

The damages for the breach of the contract in respect of delay in the completion of the building are in their, very nature uncertain and difficult of ascertainment, it being well-nigh impossible to prove any pecuniary loss to the board or the State on account of it, all of which was recognized by both parties thereto, and it was expressly agreed that such amount should be regarded as liquidated damages.

In Rutherford v. Kohler, 174 Ark. 894, 298 S. W. 9; Robbin v. Plant, supra, the court quoted from Wait v. Stanton, 104 Ark. 9, 147 S. W. 446, which had passed upon precisely the same as article 7, already set out herein, and held: “The obligation of the contractor to make claim *704for an extension was a condition precedent to his right thereto.”

There is no evidence showing that the contractor made any claim to the architect for an extension of time, in accordance with said article 7 of the contract, or otherwise, at any time during the period of the claimed delays, or at all, before the completion of the building. Nor does the proof show nor is it even claimed that the delays were caused by the act, neglect or default of the owner or its architect. Then, too, the architect testified that the contractor was not entitled to an extension of time on account of any of the delays, because they resulted from his own failure to order and arrange for procuring his materials on time, as he was bound under the contract to do.

The architect’s decision was binding on the contractor, too, in the absence of fraud or such gross mistake as necessarily implied bad faith on the part of the architect, and none such was even alleged, nor was there any proof conducing to that effect. Boston Store v. Schleuter, 88 Ark. 213, 114 S. W. 242; Carlile v. Corrigan, 83 Ark. 136, 103 S. W. 620; Federal Grain Co. v. Hayes Grain Commission Co., 161 Ark. 51, 255 S. W. 307; Hayes Grain Commission Co. v. Federal Grain Co., 169 Ark. 1072, 277 S. W. 521; U. S. v. Gleason, 175 U. S. 588, 20 S. Ct. 23, 44 L. ed. 284; Ripley v. U. S., 223 U. S. 695, 32 S. Ct. 352, 56 L. ed. 614.

The board did allow the contractor for 14 days’ ■ extension of time for delay claimed by him to have been caused by frequent rises' in the river, preventing his being able to get the sand necessary for the construction, notwithstanding the architect’s judgment that he was not entitled to it, but this constituted no waiver of its right to insist upon the stipulated damages for all the rest of the delay in the completion or construction and delivery of the building, as the lower court erroneously held.

The judgment is accordingly reversed, and, the contractor having been fully paid, as well as all other *705claims for construction of the building, the cause is remanded with directions to issue a mandamus to compel the Auditor to issue warrants for payment of the balance of the appropriation to the board, in accordance with the law and the prayer of the petition.