Estep v. Fenton
| Decision Date | 31 January 1873 |
| Citation | 1873 WL 8085,66 Ill. 467 |
| Parties | WILLIAM J. ESTEP et al.v.WILLIAM H. FENTON et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Tazewell county; the Hon. CHARLES TURNER, Judge presiding. Messrs. LACEY & WALLACE, and Messrs. ROBERTS & GREEN, for the appellants.
Messrs. DEARBORN & CAMPBELL, for the appellees.
This was an action of assumpsit, brought by appellees, in the Mason circuit court, against appellants, to recover for work and labor, etc., in building a church. The venue of the case was changed to the circuit court of Tazewell county, where a trial was subsequently had, resulting in a verdict for $1003.60. After overruling a motion for a new trial the court below rendered a judgment on the verdict, and defendants appeal to this court.
It appears, from the evidence, that appellants, as trustees of a church organization, employed appellees to erect a church edifice. Appellees entered upon the performance of their contract, erected a building, and claim that it was completed, and accepted by appellants. It also appears, that on the 11th of September, 1867, the building was consumed by fire. It is not claimed that there was a formal acceptance, but the proof shows that on two occasions some of the trustees, having the key of the house, opened it and permitted Sunday school to be held in it. The funeral services of a child were also held in the house, but with whose permission is not stated; but as appellees lived some fifteen miles distant, it might be inferred that one of the trustees, who had usually kept the key, may have permitted it to be so occupied. Again, it appears the trustees employed persons to wash the floors and to clean the house. It is claimed that these acts are sufficient to warrant the jury in drawing the inference that it was accepted, especially as it nowhere appears that either the trustees or the building committee ever informed appellees that there was any objection to the manner in which the work was performed, although some one or more of them were frequently present whilst it was progressing and after it was completed. On the other hand, it is contended there was neither a formal nor other acceptance of the work; and it is claimed that the work was not done according to the contract, nor were the materials of the quality agreed to be furnished; that the walls were sprung, the roof was sagged, the plastering cracked, the floor opened in places; that the roof leaked, and that the sash did not fit in the window cases.
It is urged that the springing of the walls, the depression in the roof, the opening in the joints of the floor and the cracking of the plastering, all grew out of an insufficient foundation, the material of which was furnished by, and was constructed as required by appellants. The question whether the building was accepted or the work properly performed, and whether proper materials under the contract were used, was for the...
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... ... R. I. & P. R. R. Co. v. Austin, 69 Ill. 426.An instruction assuming a fact as proved is erroneous: Estep v. Fenton, 66 Ill. 467; Adams v. Smith, 58 Ill. 417.Special damages are not implied by law: Olmstead v. Burke, 25 Ill. 86; 1 Chitty's Pl ... ...
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Putt v. Duncan
...and if any damages resulted from the breach, however small, it should have been set-off against appellee's demand. W. J. Estop et al. v. W. H. Fenton et al. 66 Ill. 467; Taylor v. Beek, 13 Ill. 49. The sixth instruction, which informed the jury that all damages accruing after the sale of th......
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Peterson v. Pusey
... ... 209]them what was a substantial compliance, and that, therefore, under Estep v. Fenton, 66 Ill. 467, this was reversible error. This instruction did not direct a verdict, and several of the instructions given for appellant ... ...
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Wadhams v. Innes
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