Concord Apartment House Co. v. O'Brien

Citation228 Ill. 360,81 N.E. 1038
PartiesCONCORD APARTMENT HOUSE CO. v. O'BRIEN.
Decision Date03 October 1907
CourtSupreme Court of Illinois

OPINION TEXT STARTS HERE

Appeal from Appellate Court, First District, on Error to Circuit Court, Cook County; John Gibbons, Judge.

Action by W. D. O'Brien for the use, etc., against the Concord Apartment House Company. From a judgment of the Appellate Court for the First District entering a remittitur and affirming the judgment of the circuit court for plaintiff as to the balance, defendant appeals. Affirmed.

Josiah Burnham, for appellant.

Thomas B. Marston, for appellee.

This is an action in assumpsit under the common counts to recover upon a certificate claimed to be a final certificate issued as payment under a contract, which provides, among other things: Article 1: ‘The contractor, under the direction of and to the satisfaction of William M. Wheatley, who shall act as superintendent of and for the purposes of this contract as agent for said owner, shall and will provide all the materials and perform all the work mentioned in the specifications * * * for the building for the steam heating and hot water plant for the seven-story apartment building. * * *’ Article 2: ‘No alterations shall be made in the work shown or described by the drawings and specifications except upon a written order of the superintendent, and when so made the value of the work added or omitted shall be computed by the superintendent, and the amount so ascertained shall be added to or deducted from the contract price.’ That if either party dissents to such award, the valuation of work added or omitted shall be referred to three disinterested arbitrators, one to be appointed by each party and the third by the two so chosen, the decision of any two of whom shall be final and binding, each party to bear one-half of expense of such reference. Article 3 provides that the contractor shall furnish proper facilities, at all times, for inspection of the work by the superintendent or his representatives, and on proper written notice change the work condemned. Article 4 provides that, if the contractor shall fail to furnish skilled workmen or proper materials or work, the owner may, after written notice, take possession of the work and do it himself or employ other persons to do it; that in such case the contractor shall not be entitled to further pay until the contract is so completed, and then only if there is a balance due, and ‘the expense incurred by the owner, as herein provided, for either furnishing materials or for finishing the work, and any damage incurred through such default, shall be audited and certified by the superintendent, whose certificate thereof shall be conclusive upon the parties.’ Article 5 provides for the time for the final completion of the work. Articles 6 and 7 refer to delay, with provisions for appeal from the superintendent's decision to arbitration, as provided in article 2. Article 8 provides the time of payment, and that all payments shall be made upon the written certificate of the superintendent to the effect that such payments have become due and according to the provisions of section 35 of the law of Illinois referring to subcontractors' liens, etc. There is a further provision with reference to liens. Article 9: ‘It is further mutually agreed between the parties hereto that no certificate given or payment made under this contract, except, the final certificate or final payment, shall be conclusive evidence of the performance of this contract, either wholly or in part, and that no payment shall be construed to be an acceptance of defective work or improper materials.’ There are further provisions in the contract as to keeping the work insured and not violating the city ordinances. The contract was dated May 28, 1895. The work appears to have been completed about July 28, 1896. After having made frequent applications to Rolfe, the secretary of the company, and to Wheatley, the superintendent, for a final certificate, appellee on that date furnished to Rolfe a statement of what he claimed to be a balance of $4,707.78. Rolfe, O'Brien, and Wheatley met in Rolfe's office for the purpose of determining the amount due, and on August 10, 1906, a statement was made of the final amount due O'Brien, and the final certificate was issued by Wheatley to O'Brien under the contract, stating that there was due $4,568. This certificate has never been paid. January 8, 1897, a mechanic's lien was filed by the appellee against the company. Rolfe, the secretary, inserted in the document filed the amount due on this lien. January 30, 1899, this suit was commenced in the circuit court of Cook county. In September, 1899, appellant company went into the hands of a receiver under a bill filed by the bondholders to foreclose a trust deed. Appellee, to protect the materialmen, assigned his claim against appellant to the creditors. December 21, 1903, after trial, the jury returned a verdict for appellee for $6,166, and judgment was rendered thereon. The case was thereupon taken by writ of error to the Appellate Court, where, after two rehearings, that court entered a remittitur for $821 and affirmed the judgment of the lower court for the balance, $5,345. Appeal was then prayed to this court.

CARTER, J. (after stating the facts as above).

It is claimed by appellant that the contract was improperly admitted in evidence under the common counts. It is well established that where a contract has been performed, and it only remains to pay the contract price for labor or property, the plaintiff may sue and recover under the common counts, and that the agreement may be read in evidence for the purpose of showing its terms and to recover damages. Adlard v. Muldoon, 45 Ill. 193; 1 Chitty's Pl. (14th Am. Ed.) 340. Counsel for appellant admits this proposition without question, but strongly insists that it does not apply here, because in this case the contract was not fully performed. With this contention we do not agree. The proof shows that the final certificate was issued by the appellant's superintendent after conference between himself, appellee, and Rolfe, the secretary of the company; that appellee returned the certificate to Rolfe; and that is the last he knew of it. He did not remember whether Rolfe returned it or not. Appellee testified that he made a search among his papers and could not find it. Rolfe stated in his testimony that such a certificate was issued, and agreed with the testimony of the appellee as to the amount it showed as due. In 1898 attorney W. W. Augur, representing some of the creditors of O'Brien, called on Rolfe, at that time manager and secretary of appellant company, to ascertain the exact amount due O'Brien. Rolfe gave to Augur the following certificate: ‘This is to certify that a final certificate for $4,568 was issued by the Concord Apartment House Company in favor of W. D. O'Brien, August 10th, A. D. 1896. A. A. Rolfe, Secy.’ If it was error to admit this as a part of appellee's testimony given in chief, it did not in any way harm appellant, because Rolfe afterward took the stand and admitted the truth of this written statement. The certificate having been lost, it was proper to prove its contents. The fact that it was lost did not change the rights or relations of the parties nor in any way affect the validity of the certificate. Arnold v. Bournique, 144 Ill. 132, 33 N. E. 530,20 L. R. A. 493, 36 Am. St. Rep. 419. There was proof tending to show not only the form, but the substance, of this lost certificate; and it seems to have been in substantial compliance with the law and the contract.

It is urged that appellee failed to complete his contract as to the automatic regulator, fusible plugs, and coil of galvanized iron pipe, and that the brickwork about the boilers was not in accordance with the specifications and contract. On all of these questions there was a conflict of evidence. Hence, as this court has repeatedly held, the finding of the lower court and the judgment of the Appellate Court on such questions are conclusive. Appellee admitted that he had made slight changes from the specifications in carrying out the contract, but claimed that these changes were authorized and directed by the superintendent, and that, although no written order was given, under the first article of the contract, the superintendent acted as agent of said owner, and hence had authority to permit these alterations. After the amount due has been fixed by agreement of the parties, and set out in the final certificate, it would be manifest injustice to hold that the contractor could not recover because he had no written order from the superintendent for the modifications. The contract in this respect was as binding upon the superintendent, and through him upon the owner, as it was upon the contractor. Either party could waive the requirements as to written notice. On this record the appellant clearly waived any right to insist on this point.

Appellant contends that even on this state of the record, under the decision of the court in Hart v. Carsley Mfg. Co., 221 Ill. 444, 77 N. E. 897,112 Am. St. Rep. 189, the contract was improperly admitted in evidence, and no recovery could be had on the common counts because all of the conditions precedent were not complied with. In this last case the final certificate was not issued as required by the contract, and this was held to be a condition precedent. Under the reasoning in that case, had the final certificate been issued, a recovery could have been had under the common counts. This court held in Catholic Bishop of Chicago v. Bauer, 62 Ill. 188, that ‘when there has been full performance [of the contract] and nothing remains to be done but the payment of the money, or where there has been only part performance and the remainder has been waived or prevented and the work performed has been accepted, then, in either case, recovery may be had for the contract...

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