Fitzgerald v. Benner

• Decision Date: 21 February 1906
• Citation: 76 N.E. 709,219 Ill. 485
• Parties: FITZGERALD v. BENNER et al.
• Court: Illinois Supreme Court

219 Ill. 485

76 N.E. 709

FITZGERALD

v.BENNER et al.

Supreme Court of Illinois.

Feb. 21, 1906.

Appeal from Appellate Court, First District.

Action by William D. Kent and another against William Fitzgerald. Judgment for plaintiffs, and defendant appeals. Affirmed.David K. Tone and William H. Fitzgerald, for appellant.

William A. Doyle, for appellees.

This is an action of assumpsit, brought on July 10, 1900, in the circuit court of Cook county, by the appellees, William D. Kent and Mathias Benner, constituting the firm of M. Banner & Co., against the appellant, William Fitzgerald, to recover a balance of indebtedness claimed to be due upon a building contract, together with interest thereon. The trial resulted in a verdict and judgment in favor of the appellees for $6,000. This judgment has been affirmed by the Appellate Court, and the present appeal is prosecuted from such judgment of affirmance.

The declaration, as first filed, consisted of the common counts for goods sold and delivered, for the reasonable value of said goods, for money loaned and advanced, and upon account stated; the ad damnum being laid at the sum of $15,000. Afterwards, on December 24, 1901, certain additional counts were filed, wherein the building contract was set forth in haec verba, and wherein it was alleged that the appellees had fully completed said contract, and there was due to them from the appellant upon the same the sum of $6,408.62. The second additional count, after stating the contract and that it had been completed, and that a certificate of the amount due had been demanded, and that the architect had figured up and agreed as to the amount due, alleged that the architect, acting in bad faith and in collusion with appellant as owner, refused to issue a final certificate to the appellees. Pleas of the general issue, and denying the charges of collusion and bad faith, were filed. The building contract in question was dated August 22, 1892, and was executed between appellant, as party of the first part, and appellees, under the firm name of M. Benner & Co., as parties of the second part, wherein Benner & Co. agreed to erect and complete the iron work for a six-story flat building belonging to the appellant, at the corner of Twenty-Sixth and State Streets, in Chicago. The price to be paid by appellant to appellees was fixed by the contract at a certain sum for castings per ton, another sum for beams per ton, and other sums per pound for punching, coping, riveting, and for anchors, steel plates, stirrups, and straps; and also a certain sum was to be paid as the price per square foot for Hyatt lights. Between August 22, 1892, and some date in the winter of 1892 and 1893, or in the spring of 1893-about which latter date the parties differ-material and labor amounting to $22,908.63 are alleged to have been furnished by the appellees. There were paid to them upon the contract the following amounts: November 23, 1892, $5,000; December 17, 1892, $5,000; February 21, 1893, $6,500, making $16,500 as the total amount of payments, which, taken from $22,908.63, leaves $6,408.63, being the amount due according to the claim of the appellees.

By the terms of the contract the work was to be done under the direction and supervision of Clinton J. Warren, an architect, who was required to certify in writing as to all materials, workmanship, etc. Payment was to be made upon presentation of certificates signed by the architect. The contract contained the following provision: ‘And in case the parties shall fail to agree as to the true value of extra or deducted work or the amount of extra time, the decision of the architect shall be final and binding. The same in case of any disagreement between the parties relating to the performance of any covenant or agreement herein contained.’ The contract also contained the following: ‘Damages for delay will be $50.00 per day, for each and every day the work remains unfinished after above date. Damages for delay as mentioned in specifications, will be deducted from the contract price as liquidated, and furthermore fifteen percentum of the value of all work done and materials furnished shall be held back until this contract is declared by Clinton J. Warren completed, or if contract is completed at specified time or times, said fifteen percentum kept back shall then be paid four days after the work of this contract is declared by the architect finished, provided said work and materials are free and discharged from all claims, liens and charges whatsoever, and so kept during the process of said work. Time-Basement and first story, September 29; second, October 6; third, October 13; fourth, October 20; fifth, October 27; sixth and roof, November 1. Time contingent on strikes, fires, unavoidable accident, or causes beyond our control.’ By the terms of the contract Benner & Co. agreed ‘to furnish at their own expense and under the direction and supervision of Clinton J. Warren, to be approved and certified by a writing or certificate under the hand of the said Clinton J. Warren, all materials, workmanship and labor, required by the said drawings and specifications, and to protect the materials and workmanship from damage by the elements or otherwise until the completion of the work, and to remove all improper materials and work, when directed by architect, and to substitute therefor such materials and work as, in his opinion, are required by the drawings and specification aforesaid, and will deliver said building to the said party of the first part free and discharged of all claims, liens and charges whatsoever, completely finished at such time as set forth in the specification.’ No time seems to have been stated in the specification; the language therein being as follows: ‘Time: All work to be finished on or before _____.’

The following instructions were given by the trial court to the jury, to wit:

‘(16) The court instructs the jury that in this case he has not expressed, and does not in any of these instructions express, any opinion on the facts of the case, nor upon the credibility or want of credibility of any witness. The facts must be decided by the jury from the testimony which is received in open court. Offered testimony, to which objection was sustained, or which was stricken out by order of the court, is not before the jury, and should not be considered in arriving at your verdict. Statements of counsel for either side, if any, which are unsupported by the testimony, or which are irrelevant to this case, should not be considered. The instructions given you by the court are to be considered as a series. The court has not expressed an opinion on the facts, and has not expressed an opinion on the credibility or character of any witness, and the court has no right to do so, and if the jury overheard anything said between the court and counsel in discussing questions of law, or otherwise, the jury should not consider anything but the evidence introduced before them and the law as laid down in the instructions of this court.

‘(17) If you believe from the evidence and the instructions of the court that the architect or superintendent named in the contract in this case accepted the work performed by the plaintiffs as the work progressed, as required by the contract, and if you further find from the evidence that such contract was completed in accordance with the terms thereof, and you further believe from the evidence that, after the contract was completed, the architect accepted the work performed by the plaintiffs, and if you further believe from the evidence and instructions of the court that the architect withheld or refused to deliver to the plaintiffs his statement, or certificate in writing, showing the amount due the plaintiffs, if anything, either because the defendant, the owner, directed him, the said architect, to withhold or not to deliver the same, or for any other reason not in accordance with the terms of the contract between said parties, if shown by all the evidence in this case, then you are instructed, if you find such facts proven from the evidence, that the plaintiffs would not be bound to produce such certificates before they were entitled to recover in this case.

‘(18) The court instructs the jury that if you believe from the evidence that the architect, Clinton J. Warren, in this case inspected the work in question and knew its character and quality, and that said architect accepted the work done and materials furnished by the plaintiffs as being in compliance with and in full performance of the contract on plaintiffs' part, and if you further believe from the evidence, and under the instructions of the court, that said contract was completed in accordance therewith, and you further believe from the evidence that said architect in bad faith and without just cause refused to deliver to the plaintiffs a final certificate showing such acceptance and completion and the balance due the plaintiffs, if any, then the plaintiffs are entitled to recover whatever, if anything, the jury shall find from the evidence is due upon the contract.

‘(19) The court instructs you that if you find from the evidence and under the instructions of the court that the plaintiffs are entitled to recover from the defendant, and if you find from the evidence that such money as you find the plaintiffs are entitled to, if any, was withheld by an unreasonable and vexatious delay of payment, then you may allow the plaintiffs interest at the rate of five percentum per annum on such sum, if any, as you believe from the evidence and under the instructions of the court, the plaintiffs are entitled to recover from the defendant from the date the same became payable, as may be shown by the evidence in the case, what the facts are you must determine from the evidence.’

MAGRUDER, J. (after stating the facts).

In this case the evidence shows that the labor and material, for the price of which this suit is...