Harms v. Fitzgerald
| Decision Date | 30 April 1878 |
| Citation | 1 Bradw. 325,1 Ill.App. 325 |
| Parties | HENRY HARMS, Impl'd, etc.v.WILLIAM FITZGERALD. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
Appeal from the Circuit Court of Cook county; the Hon. W. W. Farwell, Judge, presiding.
Messrs. Forrester & Beem, for appellant; contended that a court of equity has no jurisdiction to interfere by injunction with the action of a Board of County Commissioners in settling a disputed claim against the county where there is no proof of fraud or collusion between the Board and the claimant, and cited Att'y. Gen. v. Aspinwall, 2 Mylne & C. 618; Parr v. Att'y. Gen. 8 Clark & F. 409; Att'y. Gen. v. Role, 4 Mylne & C. 17; Att'y. Gen. v. Luhford, 13 Sim. 547; Att'y. Gen. v. Norwich, 16 Sim. 225; Movers v. Smedley, 6 Johns. Ch. 27; Livingston v. Holbrook, 4 Barb. 14; Meserole v. Mayor and Council, 8 Paige, 198; Gillespie v. Broas, 23 Barb. 370; Andrews v. Board Sup'rs Knox County, 70 Ill. 65.
Where injunctions have been granted to restrain municipal corporations, the objects of their appropriations were beyond their legal authority: Colton v. Hanchett, 13 Ill. 615; Town of Ottawa v. Walker et al. 21 Ill. 610; Mount Carbon Coal, etc. Co. et al. v. Blanchard et al. 54 Ill. 240; Sherlock et al. v. Winetka, 59 Ill. 389; Chestnutwood v. Hood, 68 Ill. 132; Livingston County v. Weider, 64 Ill. 427.
As to power of county board: Dillon on Mun. Cor. § 398; Town of Petersburg v. Mappin, 14 Ill. 193; Constitution Art. X. § 7; Rev. Stat. 306, 307.
Upon the question of changes made from the original plans, and that the changes were so important and extensive as to amount to a rescission of the contract: Chit. on Con. 566; Pepper v. Burland, Peake, 103; Robson v. Hall, N. P. R. 230; Wheeden v. Fisk, 50 N. H. 125; Martine v. Nelson, 51 Ill. 422.
Mr. John M. Rountree, for appellant; against the authority of a court of equity to interefere, cited City of Galena v. Corwith, 48 Ill. 423; Brush v. City of Carbondale, 78 Ill. 74; High on Injunctions, § 403; Conrad v. Trustees of Ithica, 16 N. Y. 168; Storrs v. City of Utica, 17 N. Y. 104.
As to the powers of the Board of Commissioners: Constitution Art. X. § 7; Rev. Stat. 1874, 306, §§ 22, 23, 24, 25; Rev. Stat. 1874, 307, § 26; Rev. Stat. 1874, 308, § 30; Rev. Stat. 1874, 309, §§ 33, 35; Rev. Stat. 1874, 313, § 62; Meech v. City of Buffalo, 20 N. Y. 198; Dillon on Mun. Cor. § 398; Town of Guilford v. Board Sup'rs Chenango county, 13 N. Y. 143; Nelson v. Inhabitants of Mulford, 7 Pick. 18; Town of Petersburg v. Mappin, 14 Ill. 193; Augusta v. Leadbetter, 16 Me. 47; Supervisors v. Birdsall, 4 Wend.
That the decision of the board in settling disputed claims is final and cannot be reviewed: Supervisors v. Bowen, 4 Lansing, 33; Shank v. Shoemaker, 18 N. Y. 489; Russell v. Cook, 3 Hill, 504; Stover v. Mitchell, 45 Ill. 213; County v. Hunt, 5 Ohio St. 488.
Messrs. Scates & Hynes, for appellee; insisting upon the right of a court of equity to interfere and protect the application of the funds of a municipal corporation, cited Chestnutwood v. Hood et al. 68 Ill. 132; 2 Dillon on Mun. Cor. § 731; Sherlock v. Winnetka, 59 Ill. 389; 12 Am. Law Reg. (N. S.) 150; Parr v. Att'y Gen. 8 Clark & F. 409; Grant on Cor. 138; 2 Spence Eq. 32; Colton v. Hanchett, 13 Ill. 615; Att'y Gen. v. Norwich, 12 Sim. 235.
Against the power of the Board of Commissioners to apply the funds of the county in payment of this claim: Town of Petersburg v. Mappin, 14 Ill. 193; People v. Stout, 23 Barb. 349; Perry v. Kinnear, 42 Ill. 160; 1 Dillon on Mun. Cor. 398.
Upon the question whether the original contract was still in force, and as to what the contract was: Fuller v. Little, 7 N. H. 541; Hill v. Green, 4 Peck, 114; Haywood v. Leonard, 7 Peck, 181; Bailey v. Wood, 17 N. H. 365; Weeden v. Fiske, 50 N. H. 125; De Boon v. Priestly, 1 Cal. 206; Jones v. Woodburg, 11 B. Mon. 167; Robeson v. Godfrey, 1 Holt N. P. 236; Merrill v. Ithica, etc. R. R. Co. 16 Wend. 586; Koon v. Greenman, 7 Wend. 123; McClellan v. Snider, 18 Ill. 588.
That the architect's certificate was conclusive as to the value of the deductions and extras: Korf v. Lull, 70 Ill. 420; Snell et al. v. Brown et al. 71 Ill. 133; McAuley v. Carter, 22 Ill. 53; Canal Trustees v. Lynch, 5 Gilm. 521; 12 Am. Law Reg. 150.
Mr. John Woodbridge, for appellee; that the adoption of the new plans did not abrogate the contract, cited Webster v. French, 11 Ill. 254; People v. Pearson, 1 Scam. 458; People v. Superior Court of New York, 5 Wend. 114; People v. Common Pleas, 18 Wend. 534 Ex parte Trapnall, 1 Eng. (Ark.) 9; People v. Contracting Board, 46 Barb. 254.
Against the power of the county board in their discretion to settle the claim of appellant, and that the court has authority to restrain by injunction: Frewin v. Lewis, 4 M. & C. 254; People ex rel. v. Common Council of Chicago, 53 Ill. 424; People v. Allen, 42 N. Y. 404; People v. Contracting Board, 33 N. Y. 382; 2 Dillon on Mun. Cor. 823; Att'y Gen. v. Poole, 4 Mylne & C. 17; Colton v. Hanchett, 13 Ill. 615; Perry v. Kinnear, 42 Ill. 160; Drake v. Phillips, 40 Ill. 388; Sherlock v. Winnetka, 59 Ill. 389; Millan v. Sharp, 15 Barb. 194; Davis v. Mayor, 1 Duer, 453.
That the decisions of the architect are binding: Korf v. Lull, 70 Ill. 420; McAuley v. Carter, 22 Ill. 53; Canal Trustees v. Lynch, 5 Gilm. 521; McAvoy v. Long, 13 Ill. 147; Packard v. Van Schoick, 58 Ill. 79; Mills v. Weeks, 21 Ill. 568; Central Military Tract R'y Co. v. Spurck, 24 Ill. 587; Wallace v. Holmes, 36 Ill. 156; People v. Stout, 23 Barb. 354; Halstead v. The Mayor, 3 Comst. 431; Hodges v. City of Buffalo, 2 Denio, 110; 2 Kent Com. 298.
On the 28th day of April, 1877, appellee exhibited his bill of complaint on the chancery side of the Circuit Court of Cook county, praying an injunction against the Board of County Commissioners to restrain them from paying appellant $34,609.82, the sum which they propose to pay him as part compensation for the foundations of the Cook county court house. The prayer of the bill was granted, and a perpetual injunction decreed. From this decree, Mr. Harms appealed to this Court, and assigns for error:
First, That the court erred in decreeing that the injunction against him and his co-defendants be made perpetual, and enjoining the payment to Harms of any greater sum than $107,071.03, less $92,692.90.
Second, That the court erred in assuming jurisdiction to settle and adjust the claim of appellant which had been already adjusted and settled by the county board.
Fourth. That the decree of the court is contrary to law and evidence in the case.
It appears that the appellant was a contractor engaged in constructing the foundations for the new court house during the years 1875 and 1876; that he had entered into a contract to that effect in the fall of 1875. After signing the contract, and after he had entered upon the performance thereof, the county made material changes in the plans it had adopted for the construction of the foundations and superstructure of the building. It appears that J. J. Egan was the architect of said building, and that appellant completed the work and extras ordered by the architect as directed. It is also claimed by the answer of appellant that he did not proceed with the work under the contract nor execute the extras under it; but on the contrary that the original contract, plans and specifications, were wholly abandoned and rescinded by consent of the parties to the same; that the county board ordered the architect to prepare entirely new and much more elaborate and costly plans, which were substituted for the original plans, and which were not accompanied by any specifications whatever as to materials or work, but appellant was required by the architect to furnish such materials and do such work as the architect might require and order from time to time; that the new plans were essentially different from the original plans in form and style of work, and were in no sense the same as the old plans with mere changes and additions, but were totally different in all their features and constituted another and different job, and the materials required under the old specifications could not be used in the building according to the new plans; that the architect, with the authority and knowledge of the board, agreed with appellant to pay him a fair and reasonable value for the work, and under this verbal agreement appellant went on and completed the job under the direction of the architect, and that the work and materials furnished by him were reasonably worth $162,967.89; denies that he ever agreed that the architect should value and determine the price of the work and materials under the new plans, or that the architect has made a fair and true estimate of the work, or that there is only due the sum of $107,071.03, less $92,692.90 already paid; denies that the amount of $141,689.90 allowed by the board of commissioners, was based upon the original contract, said allowance having been made on the basis of measurement and value of the whole work; and yet upon an erroneous valuation, said board having been misled in rejecting so large an amount of said appellant's claim; that it is impossible to apply the original contract or trace it in the work actually done, being so essentially different in character and details from that required by the original specifications, and finally submits that the county board had the exclusive authority by law to manage and control matters connected with the building of said court house, and to audit and settle all claims for work and materials, and denies the jurisdiction of the court to revise and correct the action of the board in the premises, or to enjoin it from exercising its legal power and discretion in regard to the same. To this answer appellee filed a general replication.
As will be seen, the issue thus formed, and the fact thus in dispute was, whether the work as actually and finally done was...
To continue reading
Request your trial