Geary v. Bangs

• Decision Date: 13 May 1891
• Citation: 138 Ill. 77,27 N.E. 462
• Parties: GEARY v. BANGS.
• Court: Illinois Supreme Court

138 Ill. 77

27 N.E. 462

GEARY

v.BANGS.

Supreme Court of Illinois.

May 13, 1891.

Appeal from appellate court, first district.

W. S. Hefferan and John K. Geary, for appellant.

Lyman M. Paine, for appellee.

BAILEY, J.

This was a suit in assumpsit, brought by Paul Bangs against John B. Geary to recover a balance claimed to be due from the defendant to the plaintiff for work and labor performed and materials furnished by the plaintiff in the erection of a building for the defendant. The declaration consists of the indebitatus assumpsit counts, and also a court alleging a special agreement in writing between the plaintiff and defendant, dated June 12, 1888, by which the plaintiff agreed to do all the carpenter work and furnish all the lumber and mill work necessary on said building, and also the roof, cornices, and gutters of said building, in accordance with the plans and specifications of the architect, the work to be completed within 60 days of the date of the contract, the defendant agreeing to pay the plaintiff therefor the sum of $1,240 as the work progressed, to-wit, $400 when the building should be under roof, $400 when it should be ready for plastering, and $440 when it should be finished. Said count alleges that immediately after the execution of said contract the plaintiff proceeded to perform the labor and furnish the materials in said contract mentioned, and that on August 1, 1888, he had so far completed said building that it was ready for plastering, whereupon he demanded of the defendant the sum of $400 then due by the terms of said contract, which the defendant refused to pay, whereby the plaintiff, for want of means, was compelled to abandon, and did abandon, the further performance of said contract; that said building so as aforesaid ready for plastering was then and there accepted by the defendant, and appropriated to his own use and benefit, by means whereof he became liable to pay the plaintiff said sum of $400 when afterwards requested. The defendant pleaded non assumpsit and various other pleas in bar to the common counts, and demurred to the special count, and, his demurrer being overruled, his pleas previously filed to the other counts were, by order of the court, extended and made to apply to the special count. Among the special pleas filed was one setting up, by way of estoppel, the pleadings, proceedings, and decree in a suit brought by the plaintiff against the defendant for the enforcement of a mechanic's lien upon said building, the petition setting up and being based upon the same indebtedness for which this suit is brought, it being alleged that in said mechanic's lien suit a decree was rendered in favor of the plaintiff establishing said lien, but that, upon appeal to the appellate court, said decree was reversed, and said cause remanded to the court below, with directions to dismiss the petition at the costs of the plaintiff. Issues of fact were joined upon all of said pleas, and, a trial being had before the court and a jury, the defendant, at the close of the plaintiff's evidence, entered his motion to take the case from the jury, which motion being overruled, an exception to said ruling was duly preserved by the defendant. The defendant thereupon proceeded to introduce testimony on his part, and the jury, having heard the evidence on both sides, rendered their verdict, by which they found the issues for the plaintiff, and assessed his damages at $260.40, and for that sum and costs the plaintiff had judgment. On appeal to the appellate court said judgment was affirmed, and the judges of that court having granted the defendant a certificate that the cause involves questions of such importance on account of principal and collateral interests that it should be passed upon by this court, the record is now brought here by a further appeal.

The evidence tends to show, and it seems to be conceded, that immediately after the execution of the contract described in the special count of the declaration the plaintiff entered upon the work therein provided for, and that when the building was under roof, he called for and received the first payment of $400. Also that some days afterwards he...