City of Chicago v. Duffy

• Decision Date: 24 October 1905
• Citation: 218 Ill. 242,75 N.E. 912
• Parties: CITY OF CHICAGO v. DUFFY.
• Court: Illinois Supreme Court

218 Ill. 242

75 N.E. 912

CITY OF CHICAGO

v.DUFFY.

Supreme Court of Illinois.

Oct. 24, 1905.

Appeal from Appellate Court, First District.

Action by Joseph J. Duffy against the city of Chicago. From a judgment for plaintiff, defendant appeals. Affirmed.

Rehearing denied December 12, 1905,

Thomas J. Sutherland (Edgar Bronson Tolman, Corp. Counsel, of counsel), for appellant.

Sears, Meagher & Whitney and Winston, Payne & Strawn (Nathaniel C. Sears, of counsel), for appellee.

HAND, J.

This was an action of assumpsit brought by Joseph J. Duffy, against the city of Chicago, in the circuit court of Cook county, to recover a balance claimed to be due him from the city upon a written contract bearing date September 30, 1895, whereby he agreed to build section 2 of a water tunnel proposed to be constructed by the city. The declaration contained four special and the common counts, and the general issue was filed. A jury was waived and there was a trial before the court, which resulted in a finding and judgment in favor of the plaintiff for $301,376.08. The city prosecuted an appeal to the Appellate Court for the First District, where the judgment of the circuit court was reversed, and an original judgment was rendered in that court in favor of the plaintiff for $137,585.28, and the city has prosecuted a further appeal to this court.

The first contention made by the city is, that there can be no recovery under the declaration. The improvement was completed, had been accepted and was in use by the city at the time suit was commenced. There remained, therefore, at that time, nothing for the city to do except to pay the plaintiff the amount due him. The contract was substantially executed, and even though it were admitted the special counts were insufficient, a recovery was properly permitted under the common counts. Union Elevated Railroad Co. v. Nixon, 199 Ill. 235, 65 N. E. 314.

It is next contended that a chancery suit commenced by one Ives against the city of Chicago, certain of its officers and the plaintiff, to enjoin the city from making any further payments to the plaintiff under the contract here sued on, upon the ground that the city, under the contract, had a claim against the plaintiff for damages in excess of his claim against the city by reason of his failure to complete the tunnelwithin the time fixed by the contract, was a bar to this action. The chancery suit was not pleaded in this action, but the question was raised by motion after the general issue was filed. No injunction was issued and Joseph J. Duffy did not file a cross-bill. In the Ives suit Joseph J. Duffy could not have recovered from the city the amount of his claim. We are of the opinion the court did not err in declining to dismiss this suit on the ground the Ives suit was pending and undetermined. To hold otherwise would be to hold that a taxpayer could prevent the collection of a just claim at any time against a city simply by filing a bill against the city and its creditor to enjoin the payment of the claim. Had an injunction been issued and the Ives suit been properly pleaded, a different question would be presented for decision.

It is next contended that the Appellate Court erred in holding that the plaintiff was entitled to recover, at the rate of $10 per cubic yard, for 8,371.08 cubic yards of back masonry made necessary by the engineers of the defendant giving improper and erroneous instructions to the servants of the plaintiff while such servants were, under their direction, blasting out said tunnel. The contract provided the work should be carried on under the direction of the city engineer. His subordinates,...