Hart v. Carsley Mfg. Co.

• Decision Date: 07 June 1906
• Citation: 77 N.E. 897,221 Ill. 444
• Parties: HART et al. v. CARSLEY MFG. CO.
• Court: Illinois Supreme Court

221 Ill. 444

77 N.E. 897

HART et al.

v.CARSLEY MFG. CO.

Supreme Court of Illinois.

April 17, 1906.

Rehearing Denied June 7, 1906.

Appeal from Appellate Court, First District.

Action by the Carsley Manufacturing Company against Robert Hart and others. From a judgment of the Appellate Court (116 Ill. App. 159) affirming a judgment in favor of plaintiff, defendants appeal. Reversed and remanded.

Julius & Lessing Rosenthal, for appellants.

Pierson, Pease & De Young, for appellee.

This is an appeal from a judgment of the Appellate Court for the First District affirming a judgment for $7,499.36 rendered by the circuit court of Cook county against the appellants and in favor of appellee. On June 29, 1901, appellants entered into a written contract with the appellee, by which the latter agreed to furnish certain material for and install and finish certain work in and upon seven residences which appellants were building upon their property at the northeast corner of Grand Goulevard and Fiftieth street, in the city of Boulevard and Fiftieth street, in the city of and the work performed under the direction and to the satisfaction of an architect named in the contract. The entire contract price was $22,715. Appellee was to receive a portion of the contract price as the work progressed and the balance within 30 days after the work was completed. No payments were to be made except upon written certificate of the architect to the effect that the payment was due, and the contract expressly provides ‘such certificates shall be a condition precedent to the right to require payment.’ Appellee furnished the material and completed the work in accordance with the contract, as it contends, but was unable to obtain the architect's final certificate, for the reason, as it charges, that the architect fraudulently combined with appellants to defeat the claims of appellee by refusing to make the final certificate, while the case was defended upon the theory that the contract had not been complied with so far as doing the work and furnishing the material was concerned, and the certificate was therefore properly withheld. The declaration consisted of the common counts and one special count. The special count was so drawn that the contract was not admissible thereunder, but the contract was admitted under the common counts, and a verdict for plaintiff followed. At the close of the evidence appellants moved the court to direct a verdict in their favor. This motion was denied, and the jury, in addition to the general verdict, returned special findings of fact in answer to questions submitted to them at the request of appellants, to the effect that the architect's final certificate was withheld through fraud and collusion with the defendants, and not as a result of the honest exercise of the judgment of the architect.

SCOTT, J. (after stating the facts).

This was a building contract. By its terms the right to recover was dependent upon the builder obtaining the certificate of the architect showing the amount due. This appellee was unable to do. Under these circumstances the builder was permitted to recover upon the common counts. In this we think there was error. In such case recovery should only be had on the contract, upon a declaration setting up the contract, averring performance as to furnishing the material and performing the work, and stating the reason for the builder's failure to satisfy the condition precedent and comply with the terms of the contract by furnishing the architect's certificate.

The true rule is this: ‘Though an excuse for not performing a condition is for some purposes equivalent to performance, yet it is not the same thing, and therefore in pleading performance must never be averred by a party who relies upon an excuse for not performing, but he must state his excuse.’ Coke on Littleton, 304; Landell on Contracts, § 175; 1 Chitty's Pl. (14th Am. Ed.) 340; Colt v. Miller, 10 Cush. (Mass.) 49;Palmer v. Sawyer, 114 Mass. 1;Speake v. Shepard, 6 Har. & J. 81;Michaelis v. Wolf, 136 Ill. 68, 26 N. E. 384;Parmly v. Farrar, 169 Ill. 606, 48 N. E. 693;City of Peoria v. Fruin-Bambrick...