City of Chicago v. Sexton

• Decision Date: 21 September 1885
• Citation: 2 N.E. 263,115 Ill. 230
• Parties: CITY OF CHICAGO v. SEXTON.
• Court: Illinois Supreme Court

115 Ill. 230

2 N.E. 263

CITY OF CHICAGO

v.SEXTON.¹

Supreme Court of Illinois.

Filed September 21, 1885.

Appeal from First district.

F. S. Winston, for appellant.

Leonard Swett and John N. Jewett, for appellee.

SCHOLFIELD, C. J.

When this case was before us at a former term, (Sexton v. City of Chicago, 107 Ill. 323,) the only question considered or decided related to the rule of law applied by the superior court to the facts before it in determining what was the contract between Sexton and the city. That court had, in rendering judgment, as the record disclosed, held that the city could not be estopped to deny that the plans and tractings furnished to Sexton by those in charge of the office of the department of public works upon which to make estimates for his bid or proposals, and afterwards to work by, were the plans for the doing of the work ‘on file in the office of the department of public works' within the contemplation of the contract. Entertaining this view of the law, the judgment in favor of the defendant logically followed; for in that view the contract was properly forfeited to the extent it was so declared, and the evidence disclosed no ground upon which a judgment could be rendered for the plaintiff, if he was in the wrong in his construction of the contract. No question, therefore, that might have been pertinent had the superior court held that there was ground of recovery sustained by the evidence was reached.

On the trial now brought in review, the superior court held, in obedience to the direction of this court, in the opinion filed upon reversing the former judgment, that the city was estopped to deny that the plans and tracings furnished to Sexton by those in charge of the office of the department of public works, upon which to make estimates for his bid or proposals, and afterwards to work by, were the plans for the doing of the work ‘on file in the office of the department of public works,’ within the meaning of those words as used in the written contract between the city and Sexton; and having so held, other questions not pertinent in the view held by the superior court upon the former trial arose during the progress of the trial, and were ruled upon by the court.

We entirely concur in the ruling of the superior court on the first ground urged for a reversal of the judgment below, which is that that court erred in not holding that the contract between Sexton and the city is by its terms divisible, and that therefore a forfeiture of a part did not affect the residue. In our opinion this construction of the contract is not admissible. The undertaking of Sexton is, ‘for and in consideration of the payment to be made, * * * to furnish, deliver, set up, place, and fix complete all the iron work required in the erection of a building for a city hall,’ etc. And the undertaking of a city is ‘to pay to said party of the first part, when this contract shall be wholly carried out and completed on the part of said contractor, and when said work shall have been accepted by said mayor, the sum of one hundred and five thousand three hundred and two dollars and sixty-nine cents.’ It is true the amount is made up by stating the estimated cost of each story separately, and the roof, and then adding the whole together. But this was evidently merely for the purpose of furnishing the data upon which the estimate was made, for there is nowhere any agreement to receive and pay for the work by stories; on the contrary, it has been seen payment is to be made of the aggregate amount when the contract shall be wholly carried out. The provision authorizing estimates to be made is conditional upon the rate of progress of the work being satisfactory to the mayor. But the language in nowise limits the estimates by the stories. And it expressly provides that 15 per cent. of the estimates shall be reserved, not until the completion of the work on the story on which the estimates are made, but until the ‘final completion and acceptance of said work.’

The power to declare a forfeiture given to the mayor by the contract is not an arbitrary power to be exercised by him capriciously. But it is in its nature judicial, and can be only exercised when acting in good faith, and for reasonable cause, and then its exercise is not limited to stories. It may be for the part of a work on a given story as well as for the whole of the work on a story.

We are clear in the opinion that the contract is an entire one, in which the consideration for each undertaking is the consideration for every undertaking, and in which the benefits presumed to result from the performance of the entire contract, instead of benefits presumed to result from the performance of separate parts of the contract, were in anticipation.

But upon the next ground urged for a reversal of the judgment below the law is, in our opinion, with appellant. The superior court was asked to hold, but refused to do so, that so far as materials were furnished and work done under the special contract, the price therefor must be governed by its stipulations; and proceeded to hear evidence and render judgment for the value of such materials and work, entirely disregarding the stipulations of the contract. This same question was directly before this court in Folliott v. Hunt, 21 Ill. 654; in Evans v. Chicago & R. I. R. Co. 26 Ill. 189; Holmes v. Stummel, 24 Ill. 370; and in Dobbins v. Higgins, 78 Ill. 440,-and it was held that in cases like the present, so far as the work is done or materials furnished, to recover for which the suit is brought, under a special contract, its stipulations must govern as to the value of such work and materials.

The question was not before us in Lincoln v. Schwartz, 70 Ill. 134, nor in Cook Co. v. Harms, 108 Ill. 151. In the first named of these cases the rule was recognized that the special contract affords the rule of damages, so far as it can be traced or followed; but it was held that, under the evidence, it did not appear that the judgment would have been any more favorable to the appellant had the correct rule been adopted than it was under the rule laid down in the instructions; and that therefore there was not such error as would authorize a reversal. In the other case the only question having any apparent analogy was, what was to be regarded as within the meaning of the terms ‘changes, additions, and alterations,’ as used in the contract? and we held that any material departure from the plans and specifications, resulting in a new and substantially different undertaking, could not be regarded as within their meaning, and that the contractor, in case of such material and substantial change, is not limited or governed by the original contract as to his compensation for the...