Gilmore v. Courtney

• Decision Date: 11 October 1895
• Citation: 41 N.E. 1023,158 Ill. 432
• Parties: GILMORE v. COURTNEY.
• Court: Illinois Supreme Court

158 Ill. 432

41 N.E. 1023

GILMORE

v.COURTNEY.¹

Supreme Court of Illinois.

Oct. 11, 1895.

Appeal from appellate court, First district.

Assumpsit by Thomas E. Courtney against Arnold P. Gilmore. Plaintiff obtained judgment, which was modified by the appellate court. 54 Ill. App. 417. Defendant appeals. Reversed.Collins, Goodrich, Darrow & Vincent, for appellant.

G. P. Merrick, for appellee.

Appellee instituted his action of assumpsit against appellant on a building contract, filing the common counts only. Subsequently, and before trial, he filed a special count. The special count, after setting up this contract, alleges: ‘Notwithstanding said contract, said defendant, acting under the direction of said architect, who fraudulently acted as the agent and attorney for said defendant, and entirely failed to act as arbitratorunder said contract, and said defendant, conspiring with said architect to defraud said plaintiff by deducting large sums of money for delays said to have been caused by said plaintiff, and upon other false and pretended charges, deducted large sums of money from the amount due said plaintiff, has neglected and refused to carry out and fulfill his part of said contract.’ The contract was entered into on July 15, 1889. The plaintiff claimed a balance due on the contract price, amounting to about $528, and for extra work, damages by reason of detention, etc., $1,426.05; and the defendant pleaded the general issue, and insisted he was damaged by reason of delay $450, and damages for failure of appellee to complete his contract $602.23. From the evidence it appears that appellant entered into a contract with appellee by which the latter was to do the excavation and furnish the material and do the mason work of a four-story apartment house in the city of Chicago. By the terms of the contract, the work was to be done in accordance with plans and specifications under the direction of the architect, who, it was stipulated, should act as arbitrator on all questions of damage, allowance for extra work, and work left out, and all questions as to the intent and meaning of the contract. It was also agreed that the consideration for the work should be $12,923, payment to be made from time to time at the direction and upon certificate of the architect that all the terms of the contract had been complied with, reserving, however, 10 per cent. of the amount until 30 days after completion of the work. The work was to be completed on or before October 1, 1889, and, for a failure so to do, it was agreed the contractor should allow the owner $25 for each and every day the completion of the building was delayed, as fair rental and liquidation of damages, and not as a penalty. By the plans and specifications made a part of the contract, nothing was to be allowed as extras except work agreed upon in writing, and accepted by the owner, previous to its commencement by the contractor. The contractor was, by the plans and specifications, to refill around all walls and areas; remove all surplus sand and obstructions; point up exterior and interior joints above grade; build all walls plumb and true, laid to a line exact height for joists; on completion, remove all rubbish, leaving work in perfect condition, and rubbish made by the mason left on the premises to be removed by the owner at cost of contractor.

Under the amendment to section 35 of the mechanic's lien act, as amended in 1887 (in force) it is provided that the original contractor, whenever he desires to draw any money from the owner, lessee, or agent on his contract, shall make out and give a statement under oath of the number and names of the subcontractors, mechanics, or workmen in his employ, or persons furnishing material, and how much, if anything, is due or to become due, etc.; and, until that statement is made in manner and form as therein provided, the contractor shall have no right of action or lien against the owner on account of such contract. As found by the jury on special findings, the appellee quit work about December 1, 1889, and did not complete his contract with appellant. A special finding was asked, as follows: ‘Did Courtney complete his contract, and perform it either literally or substantially, and, if so, which?’ The jury found specially, ‘Substantially.’ The jury further found that the architect did not refuse to act as arbitrator under the contract, and appellee quit work about December 1, 1889. At the trial no final certificate from the architect was produced by plaintiff, showing his right to any balance due whatever, either under the contract or for extras or damages. Its absence was sought to be excused by proof of fraudulent conduct on the part of the architect, which justified plaintiff in refusing to submit disputes to his arbitration. It does not appear from the evidence that, after appellee quit work, he furnished a verified statement under the act of 1887. The only evidence seemingly relied on to show fraud on the part of the architect was a conversation growing out of appellee's application for a certificate to the architect, which he declined to give without a sworn statement, which appellee insisted should not be required of him, and had not been by others with whom he contracted, and he claims the architect said: ‘I want you to understand that I am opposed to everything and everybody, and in favor of the owner.’ The conversation was shortly after the work commenced, and subsequently the appellee applied for and received certificates from the architect. On trial, at the close of plaintiff's evidence, defendant moved the court to instruct the jury to find for the defendant, which motion was renewed at the close of all the evidence, both of which motions were denied. A verdict in favor of plaintiff for $1,550 was returned, and a motion for new trial was entered, claiming error in giving instructions for plaintiff, in refusing and modifying instructions asked by the defendant, etc. On appeal ther appellate court affirmed the judgment to the amount of $902.22, and required a remittitur to the amount of the residue, which was entered. An appeal was prosecuted to this court, and, in addition to the questions arising on the record, the appellee moved to dismiss the appeal, because the amount of $1,000, exclusive of costs, was not involved, which motion was reserved to the final hearing.

PHILLIPS, J. (after stating the facts).

By the amendment to section 35 of the law in relation to liens, approved June 16, 1887, in force at the time this contract was entered into and the work done thereunder, it was incumbent on the contractor to render the statement under oath as required by that amendment as a condition precedent to the right of action against the owner. No compliance therewith being shown, the motion to find for the defendant, made at the close of plaintiff's case, should have been allowed. That motion,...