Finney v. Condon
| Decision Date | 30 September 1877 |
| Citation | 1877 WL 9666,86 Ill. 78 |
| Parties | GEORGE C. FINNEYv.WILLIAM H. CONDON et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Cook County; the Hon. JOHN G. ROGERS, Judge, presiding.
Messrs. GRANT & SWIFT, for the appellant.
Messrs. TULEY, STILES & LEWIS, for the appellees.
Mr. JUSTICE SCOTT delivered the opinion of the Court: On July 1, 1873, Charles Moore entered into a written contract with George C. Finney, by which Moore agreed to furnish all materials and erect and complete two brick dwelling-houses within four months and fifteen days from that date, according to plans and specifications made part of the contract, for the sum of $13,000, to be paid in installments of eighty-five per cent on estimates to be made by the architect superintending, as the work progressed, on the 1st and 15th of each month, and the remaining fifteen per cent when the work was all completed. It was stipulated the work was to be done under the supervision of an architect selected, whose duties, as set forth in the contract, consisted in “giving, on demand, such interpretations, either in language, writing, or drawing, as in his judgment the nature of the work may require, having particular care that any and all work done and materials used for the work be such” as in the contract described, and whose “opinion, certificate, report, and decision on all matters to be binding and conclusive.” By their writing underneath the contract, and by them subscribed, defendants guaranteed the faithful performance of the contract, and bound themselves to indemnify the owner against liens, or from any loss that might accrue to him from failure in any way by Moore to fulfill his contract. The contractor failed to complete the buildings, and it is upon the guaranty of the sureties this action is brought to recover the excess over the contract price the owner was compelled to expend in completing that which the contractor left undone.
Two distinct defenses are insisted upon: first, plaintiff, without the knowledge or consent of the sureties, extended the time to the contractor in which to fulfill his agreement; and, second, plaintiff paid the contractor a sum greater than eighty-five per cent of the work done as it progressed, in violation of the terms of the contract the sureties had guaranteed the performance of, which so changed its terms as to discharge them from their undertaking.
So far as the first defense relied on is concerned, there is no evidence in the record to sustain it. Plaintiff denies most positively that he ever extended the time of the performance of the contract. It does not appear he was ever asked to do so. On that subject he admits he said, if the buildings were completed within a certain time beyond the period fixed, he would waive all claims for damages. One or two of defendants say plaintiff told them he had extended the time for the completion of the work; but the contractor does not say it was ever extended, or that he ever asked to have it done. No valid extension of the time of performing the agreement, founded on any consideration, was proven, and the point made need not be further discussed.
All the difficulty in the case arises on the other branch of the defense sought to be made. Evidence in the record shows the contractor, on November 16th, which was the next day after the work should have been completed, notified the architect he was compelled to abandon his contract, which he did. Notice was given to plaintiff, and immediately he gave defendants notice of the failure of the contractor to fulfill his agreement. It seems the work was relet by the architect, to be finished, and it cost plaintiff a sum greatly in excess of the contract price.
During the progress of the work plaintiff paid the contractor, from time to time, under the directions of the architect, sums of money amounting in the aggregate to $10,850. A question is raised that the several payments were made without sufficient warrant from the architect; but there is no just ground for complaint on that score. No doubt the certificates authorizing the payments to be made were informal. Any certificate that is in fact an architect's estimate, it is apprehended, will be sufficient. In ...
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Logan Planing Mill Co. v. Fidelity and Casualty Co. of NY
...it without their consent it discharges them from their undertaking.' 164 U.S., at 239, 17 S.Ct. at 147, quoting from Finney v. Condon, 86 Ill. 78, 81 (1877). "The Prairie Bank case thus followed an already established doctrine that a surety who completes a contract has an `equitable right' ......
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US v. TAC Const. Co., Inc.
...it without their consent, it discharges them from their undertaking." 164 U.S. at 239, 17 S.Ct. at 147, quoting from Finney v. Condon, 86 Ill. 78, 81 (1877). The Prairie Bank case thus followed an already established doctrine that a surety who completes a contract has an "equitable right" t......
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Pratt Lumber Co., Inc. v. T.H. Gill Co.
... ... sustaining the decision. He quotes with approval, the ... language of Mr. Justice Scott in Finney v. Condon ... (1877) 86 Ill. 78: ... 'The ... law upon this subject seems to be, the reserved per cent. to ... be withheld until the ... ...
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Getchell & Martin Lumber & Mfg. Co. v. Peterson & Sampson
...the certificates were informal. Any certificate which is in fact an architect's estimate it is apprehended will be sufficient." Finney v. Condon, 86 Ill. 78. Where the form of the certificate is not fixed by contract, a simple statement to the effect that a certain sum is now due has been h......