O'Brien v. Sexton

• Decision Date: 24 March 1892
• Citation: 30 N.E. 461,140 Ill. 517
• Parties: O'BRIEN v. SEXTON.
• Court: Illinois Supreme Court

140 Ill. 517

30 N.E. 461

O'BRIEN

v.SEXTON.¹

Supreme Court of Illinois.

March 24, 1892.

Appeal from appellate court, first district.

Assumpsit by Thomas O'Brien, for the use of M. Byron Rich and George N. Stone, against Patrick J. Sexton. Defendant obtained judgment, which was affirmed by the appellate court. Plaintiff appeals. Reversed.Rich & Stone, for appellant.

Brandt & Hoffmann, for appellee.

MAGRUDER, C. J.

This is an action of assumpsit, begun on April 20, 1888, by the appellant, for the use of Rich and Stone, against the appellee. Judgment in the trial court was in favor of the defendant below, the appellee here; and this judgment has been affirmed by the appellate court, whence the cause is brought before us by appeal. The declaration contains the common counts only, to which the defendant filed the plea of the general issue. The record shows a written stipulation signed by the attorneys of both parties, by which it is agreed ‘that either of the parties may introduce evidence under the pleadings as they stand, the same as if an appropriate special count or special plea had been filed in the case, and the said defendant may introduce any evidence which would be a defense under the statute of limitations, or by way of set-off or recoupment, which would be admissible if the subject-matter were properly pleaded.’ On December 31, 1882, appellant, O'Brien, and appellee, Sexton, entered into a written contract under seal, by which O'Brien agreed that he would provide all labor, workmanship, and materials, and execute to completion all the plastering work required in the erection of a block of 9 buildings, containing 36 flats, known as ‘Hotel St. Benedict,’ and located at the corner of Chicago avenue and Cass street, in Chicago, in accordance with the plans and specifications prepared by J. J. Egan, architect, and annexed to the contract, the work and materials to be subject to the direction and acceptance of Egan and of Sexton, who was to act as superintendent, and by which Sexton agreed to pay O'Brien $9,990, as follows: $3,000 when the work is lathed and browned; $2,000 when the work is second-coated; balance, less 15 per cent., when completed; the 15 per cent. reserved to be paid when work is accepted. Under the specifications, O'Brien was to do lathing, plastering, calcimining, patching, repairing, finishing, cleaning, and drying, and to commence the plastering within six days after one house was roofed and inclosed, and to continue the work so as to have the entire block plastered within six weeks from the commencement of the plastering. The owner, Sexton, was to have the building sultably inclosed with temporary doors and window sashes, etc. O'Brien, or the men under him, worked at the lathing and plastering until the close of Saturday, April 21, 1883, or until some time in the forenoon of Monday, April 23, 1883, at which time the work which O'Brien was to do under the contract had not yet been finished. After April 23, 1883, O'Brien did no more work. Before that day, Sexton had paid him $6,225 upon the contract, and thereafter paid some of his workmen $943, making $7,168 in all, and leaving $2,822 unpaid. Appellant claims that the cost of completing the contract should not have been more than about $400, and that there is due to him the difference between $2,822 and $400, to-wit, $2,422, besides interest and the value of certain materials and utensils alleged to have been appropriated by appellee. On the other hand, appellee claims that he was obliged to pay out more than $5,000 in addition to said sum of $7,168 in order to complete the work left unfinished by the appellant, and that, in addition to all this, he lost more than $5,000 in rents by reason of the delay in the completion of the work.

The pivotal fact in the case is the cause of the failure of appellant to do anything more towards the fulfillment of the contract after April 21st or April 23d. The testimony is clear that O'Brien's men worked until the close of April 21st. The testimony is not clear as to whether any work was done on April 23d, though appellant claims that some work was done on the morning of that day. Was the failure of O'Brien to finish the work due to his fault, or to the fault of appellee? Did appellant abandon the work, and neglect and refuse to proceed with it, or did appellee refuse to allow the appellant to proceed, and prevent him from fulfilling his contract? These were questions for the jury to decide. Appellee claimed that appellant abandoned the work without good cause, and there was testimony tending to support this view. Appellant claimed that appellee refused to furnish him with money to pay the workmen what was due to them on the evening of April 21st, and forcibly prevented him from entering the building, and employed outside parties to complete the contract, without the consent of the appellant, and without notice to him. There was evidence tending to support this contention. No instructions were given for the plaintiff below, and none seem to have been asked on his behalf. The court gave some 14 instructions for the defendant, and among others the following: ‘ Tenth. If the jury believe from the evidence that there was a written contract between O'Brien and Sexton for the doing of the plastering in question, and that O'Brien failed and refused to perform his part of said contract, and abandoned said plastering work in an unfinished state, and that Sexton did not release O'Brien from said contract nor waive the performance of it by him, nor prevent O'Brien from completing his contract, then the jury are instructed, as matter of law, that O'Brien cannot recover anything under said written contract. And even though the jury may believe from the evidence, and under the instructions of the court, that O'Brien is entitled...