Brownell Imp. Co. v. Critchfield

• Decision Date: 19 June 1902
• Citation: 197 Ill. 61,64 N.E. 332
• Parties: BROWNELL IMP. CO. v. CRITCHFIELD et al.
• Court: Illinois Supreme Court

197 Ill. 61

64 N.E. 332

BROWNELL IMP. CO.

v.CRITCHFIELD et al.

Supreme Court of Illinois.

June 19, 1902.

Appeal from appellate court, First district.

Action by George W. Critchfield against the Brownell Improvement Company. From a judgment affirming a judgment in favor of plaintiff (96 Ill. App. 84), defendant appeals. Affirmed.Gardner & Burns, for appellant.

J. B. Langworthy, F. W. Bentley, W. S. Oppenheim, and Leroy D. Thoman, for appellees.

The following statement of facts as made by the appellate court is sufficiently full and accurate, and is adopted as the statement of this court:

‘Appellees contracted with the city of Chicago on August 26, 1895, to curb, grade, and pave a portion of Wabash avenue, in said city. The written contract provided that the work should be done according to specifications, and that the the work should be approved by the commissioner of public works of the city. On September 17, 1895, appellees entered into a subcontract with appellant to do a part of this work. The contract was in writing, and provided, inter alia, that appellant was to ‘thoroughly flood and roll the subgrade with a ten-ton roller, to the entire satisfaction of the parties of the second part, and to furnish all material and lay down and construct the combined curb and gutter and the concrete foundation at the proper grades, and leave the same in condition ready to receive the asphalt surface, as required in the contract of the parties of the second part with the city of Chicago, dated August 26, 1895, for the improvement of Wabash avenue from Sixty-Sixth street to Seventy-First street, said work to be done in accordance with said contract with said city and plans and specifications thereto attached. It is understood and agreed by and between the parties hereto that this contract is made subject to all conditions contained in said contract with said city of Chicago, so far as the same applies to the material to be furnished and the labor to be performed by the parties of the first part, which contract, by reference thereto, is hereby made a part hereof.’ It was also provided by this contract that eighty-five per cent. of the amount to become due to appellant for its work should be paid from time to time as the work progressed, with certain privileges to appellees to pay by promissory notes or by cash.

‘Appellant proceeded to do the work contracted for, and claimed to have completed it in the latter part of November, 1895. At about this time the city had ordered the work suspended until the following spring because of the weather and in accordance with a provision in its contract. In December, 1895, appellant desiring a settlement with appellees, the parties entered into an agreement of conditional settlement, which provided that whereas the said Brownell Improvement Company now desires a settlement for said work, it is agreed between said parties that a temporary settlement shall be made on the following basis: Said Brownell Improvement Company to be paid on a basis of having completed 12,969, square yards of concrete and 7,175.8 feet of curb, it being agreed that when final estimates are made by the city, if the same be less than the amounts herein stipulated, the said improvement company shall refund the difference, if any, and that, if said final measurements show more work than the amounts herein stipulated, the excess, if any, to be paid to said Brownell Improvement Company. It is expressly stipulated and agreed that, if defects of workmanship or material become apparent in said concrete or said combined curb and gutter before the final completion of asphalt wearing surface, or if any portion of said concrete or said combined curb and gutter requires repairs, or any other work would have to be performed on it to make it comply with the requirements of the city authorities before laying said asphalt wearing surface, the said Brownell Improvement Company will make said alterations or repairs, or perform such other or additional work as may be required by said city authorities, free of expense to said parties of the second part. Further recites that nothing in this agreement shall relieve the said Brownell Improvement Company from its guaranty under its bond to said party of the second part for the faithful performance of said contract. This agreement was signed by both parties thereto, and accepted on the bottom thereof by the Mexican Asphalt Paving Company, by its president and secretary. It was executed under seal.

‘After the making of the contract with the city and the subcontract with appellant, the business of appellees was incorporated as the Mexican Asphalt Paving Company, and the contracts of appellees were assigned to the corporation. Under this conditional or ‘temporary’ agreement of settlement the appellees paid appellant for its work, the final payment of $253.75 being made January 2, 1896. The work done was covered, to protect it from the weather, by appellant. In the spring following it was found that the work was not in good condition. There was some conflict as to this condition of the work, but the record discloses evidence which would well warrant the conclusion that the concrete work done by appellant was found in the spring to be soft in many places, and not such work as the contracts required. The commissioner of public works of the city refused to accept this work, and required that the concrete work done by appellant under its contract with appellees, and paid for under the conditional settlement, should be relaid. This, appellant, when requested by appellees, refused to do, and thereupon the representative of the appellees said, ‘Then we will do this work, and charge you with the cost of it, and sue you for the amount,’ to which Mr. Brownell, the representative of appellant, replied: ‘That is the only way out of it. You can go ahead along those lines.’ But Mr. Brownell denied any liability of appellant to do the work. Appellees, through the Mexican Asphalt Paving Company, proceeded to relay the concrete work done by appellant to the extent of 8,463 square yards, at a cost of $2,845.11. The remainder of the work, consisting of 3,222 square yards, was ordered done by the city through another company, the Assyrian Asphalt Paving Company, and the cost thereof was deducted from the amount due to appellees from the city.

‘Before the work was relaid, an attempt was made by appellant and appellees to induce the commissioner of public works to accept it as done by appellant, in which attempt they failed. The work let to the Assyrian Company by the city to complete the contract of appellees included not only the relaying of work done by appellant,but as well the finishing which appellees were to do thereunder, and a lump sum of $11,500 was deducted from appellees' contract price to cover this entire work. Appellees brought this suit to recover from appellant, for the use of the Mexican Asphalt Paving Company, the amount which it had thus cost them to relay the 8,463, square yards, and the amount deducted by the city for the relaying of ...