Coles Cnty. v. Goehring

• Decision Date: 20 April 1904
• Citation: 70 N.E. 610,209 Ill. 142
• Parties: COLES COUNTY v. GOEHRING.
• Court: Illinois Supreme Court

209 Ill. 142

70 N.E. 610

COLES COUNTY

v.GOEHRING.

Supreme Court of Illinois.

April 20, 1904.

Error to Circuit Court, Coles County; H. Van Seller, Judge.

Action by S. S. Goehring against Coles County. Judgment for plaintiff. Defendant brings error. Modified.John. F. Voigt, Jr., State's Atty., J. F. Hughes, A. J. Fryer, and D. T. McIntyre, for plaintiff in error.

James W. & Edward C. Craig, Craig & Kinzel, Charles C. Lee, and Andrews & Vause (Swift, Campbell & Jones, of counsel), for defendant in error.

This is an action of assumpsit, begun on December 20, 1901, in the circuit court of Coles county by the defendant in error, Goehring, suing for the use of certain banks and other persons, against the plaintiff in error, the county of Coles, on a contract entered into between the plaintiff in error and the defendant in error on September 20, 1898, for the repair and reconstruction of the courthouse in said county. The declaration, as originally filed on December 20, 1901, consisted of three counts. The first count was a consolidated common count. This first count was amended on April 7, 1902, and, as amended, not only contained the usual common counts, including a count for money found to be due on an account then and there stated between the parties, but also included a claim for interest. The second and third counts were special counts upon the contract hereinafter mentioned. The special counts allege, by apt averments, that the work was done on the contract, and that the courthouse was accepted by the county. The plaintiff in error demurred to the special counts, and the demurrer was overruled. A plea of general issue was filed to the declaration, with the stipulation that all defenses to the merits that could be made under any plea well pleaded could be made under the plea of the general issue. The case was then tried by the court without a jury. After hearing the case, the court rendered a judgment in favor of the defendant in error and against the plaintiff in error for $95,204.31. Exceptions were taken by the plaintiff in error to the judgment. An appeal was prayed and allowed, but never perfected, and this writ of error is sued out from this court for the purpose of reversing said judgment.

The contract, made on September 20, 1898, between Samuel S. Goehring, as party of the first part, and the county of Coles, acting through a building committee appointed by the board of supervisors of said county, party of the second part, provides as follows:

‘The party of the first part agrees with the party of the second part to furnish labor, and material to repair the courthouse on the public square in the city of Charleston, county of Coles, in conformity with the proposals, plans and specifications prepared by C. W. Rapp, architect, as mentioned in the printed proposals, which plans and specifications and proposals are hereby made a part of this contract, for the sum of $85,727.00, payable as hereinafter mentioned. The stone, used for the facing, to be Coles county buff sandstone, and the stone used for trimmings to be of the first quality of gray sandstone. The said work to be completed within one year from this date, provided that any delay, occasioned by the failure of the party of the second part to deliver possession of the ground and building to be repaired; and the time for completion shall be extended for a period equivalent to the time lost. Said work to be done under the direction of the architect, acting for the parties of the second part; but no change or alteration to be made from the plans and specifications, without the written consent of the parties hereto. Said work to be paid for during the construction to the parties of the first part, monthly on the basis of eighty-five per cent. of the value of the labor performed and material in place in the building, as estimated by the architect, in interest-bearing county orders, bearing seven per cent. interest per annum from date thereof, and the balance in interest-bearing county orders, bearing seven per cent. interest per annum from date thereof, upon the completion and acceptance of the building.

‘Said party of the first part hereby agrees to give bond within three days from this date, according to the proposals aforesaid.

‘The above and foregoing contract to be binding upon the party of the first part, his heirs, executors, administrators and assigns, and upon the party of the second part. Should the party of the first part fail or refuse to proceed with the contract for a period of ten days, according to the spirit thereof, the building committee shall have the right to take possession of all material and complete the work at the expense of the party of the second part.

‘Witness our hands and seals this September 20, 1898. Samuel S. Goehring. [Seal.] County of Coles (By the Building Committee of the County Board). J. K. Rardin, Chairman. [Seal.] Ivory W. Merritt, Sec. [Seal.]’

Seven other members of the board signed under their hands and seals.

On July 11, 1898, at a regular meeting of the board of supervisors of the county, a communication from R. Alexander, the then county treasurer, to the board, was read. This communication stated that the office provided for the county treasurer was too small, badly lighted, and located between the ladies' water-closet and the main water-closet; that it had no ventilation; that it was contaminated with the poisonous gases from those closets, and that there were no vaults for the records or papers, and no place for necessary books and files; that it was unhealthy and unsanitary, and not convenient to accommodate the large number of people constantly called to the treasurer's office; that it was necessary to provide another and better office for the county treasurer; that the courthouse cannot be rearranged to provide more room for this office, as the other offices are overcrowded; that there were no offices or rooms for the county judge, state's attorney, coroner, county surveyor, and other officials, and no room to make them; that the building had been erected so long that it was doubtful whether it could be added to, with the present old walls, without endangering the structure; that it was necessary to have vaults and more room for the treasurer, and room for his books and papers; that it has been for years so unhealthy for the incumbent that each treasurer has been constantly alarmed for his health; that some provision should be made for a proper office for the county treasurer, so that he can transact his business according to law, and preserve his books and papers in a fireproof vault as provided by law; and that, in case of a fire in the present condition, the loss to the county would be beyond computation.

At the July term, 1898, the committee on grounds and buildings of the board of supervisors reported that they had examined the courthouse, and found that there was a general demand for additional room in the offices, and for more vault room; that, in view of the rotten brick, crumbling walls, and insecure foundations, it was a serious matter whether the walls could be repaired without constructing entirely new walls and new roof; that the building was cold in winter, and, for want of ventilation, hot in summer; that the courtroom is totally inappropriate for the uses for which it is designated; that there are in fact no jury rooms of any convenience; that the vaults for the records are crowded to the last degree, because the tremendous gain in population has made demands which were not anticipated when the courthouse was last reconstructed; that the board has wasted many times the cost of a new courthouse in idle repairs, which is now lost; that the reason therefor proceeded from the erroneous idea that to renew the whole structure would entail a heavier tax levy on the people; that the improvement has been delayed on that score, when the facts are that the levy can only be 75 cents on the $100, and that rate has been laid for many years; that, if the extra money is put in in constructing a permanent building, and the necessary saving is made in the accounts, the county may have a new courthouse without additional taxation. The report recommended that the board work on those lines, and that the walls and roof be rebuilt in whole or in part.

A resolution was then adopted by the board, appointing a special committee to obtain plans and specificationsfrom some competent architect, and to advertise for bids for the repairing and reconstruction of the courthouse in accordance with such plans and specifications. The resolution, after reciting that it was made the duty of the county board of each county by statute to erect when necessary, and keep in repair, a suitable courthouse, and provide proper rooms and offices for the several courts of the county, and for the county board, county clerk, county judge, circuit clerk, sheriff, coroner, state's attorney, county superintendent, county surveyor, clerks of courts, and to provide suitable furniture therefor; and reciting that the present courthouse was not suitable, and had not the proper rooms, nor the necessary fireproof vaults, and was improperly lighted and ventilated and dangerous, and a menace to the life and health of all persons attending upon the court; and reciting that complaint had been made by the officers of the county, and by the building and grounds committee, of the lack of room, etc., and declaring that the courthouse was wholly inadequate and out of keeping with the standing of the county-it was thereupon resolved that the courthouse and offices be repaired by placing a modern system of heating therein; that the vaults be enlarged, so as to make room for the records, files, etc.; that the courtroom be remodeled so as to be convenient and suitable; that the roof be remodeled and repaired so as not to leak or be unsafe; and that suitable rooms for juries and for the county officers be constructed, enlarged, and...