Hennessy v. Metzger
| Decision Date | 29 October 1894 |
| Citation | 152 Ill. 505,38 N.E. 1058 |
| Parties | HENNESSY et al. v. METZGER. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from appellate court, First district.
Assumpsit by Patrick M. Hennessy and Richard M. Hennessy, copartners as Hennessy Bros., against William G. Metzger. Plaintiffs obtained judgment for only part of the sum sued for, and this judgment was affirmed by the appellate court. Plaintiffs appeal. Affirmed.Osborne Bros. & Burgett, for appellants.
L. H. Bisbee and W. N. Gemmill, for appellee.
This is an action of assumpsit, begun on September 13, 1890, by appellants against appellee. The declaration contains the common counts for work done, materials furnished, moneys due and owing, for interest, etc. The ad damnum is $15,000. The pleas are: First, non assumpsit to the whole declaration, which was afterwards stricken out, and defendant deposited with the clerk $4,419.20, which was paid to the plaintiffs; second, non assumpsit except as to said sum of $4,419.20; third, tender of said sum of $4,419.20 on August 26, 1890; fourth, plea of failure to comply with the drawings and specifications in certain forfeitures, and that damages thereby resulted, which the defendant offers to set off. Appellee, Metzger, owned land in Chicago, and in March, 1890, he and appellants, Hennessy Bros., entered into a written contract as follows: ‘Contract made March 8, 1890, between Wm. G. Metzger (hereinafter called ‘owner’) and Hennessey Bros. (hereinafter called ‘contractors'). Said contractors agree that they will erect, build, and complete, or cause to be erected, built, and completed, (1) the masonry, (2) carpentry, (3) the painting and glazing, (4) and metal and roof work for building to be erected in Chicago for said owner according to drawings and specifications made by Burnham & Root (hereinafter called ‘architects'), which drawings and specifications shall be considered part of this contract. Said contractors agree to furnish, under the direction and supervision of said architects (or their superintendent), all the materials, workmanship, and labor required by said drawings and specifications, and to remove all improper materials and work when directed by said architects; and will deliver said buildings to said owner completely finished at the time set forth in the specifications. Said owner agrees to pay to said contractors, upon presentation of certificates signed by said architects, the sum of $15,600. It is agreed that all damages for delay as mentioned in the specifications shall be deducted from the contract price as liquidated damages; and 15 per cent. of the value of all work done and materials furnished shall be held back until the contract is declared by said architects completed; or, if contract is completed at specified time, said 15 per cent. kept back shall be paid 40 days after the work of contract declared finished by architects. Said contractors agree to enter on the performance of contract at once, or as soon as, in judgment of architects, it is possible to do so, and hasten the work to completion. It is agreed that said owner may require any alterations in plans, material, or workmanship that he may deem proper, without annulling or invalidating this contract; and in case of any such alterations or deviations from the plans and specifications involving an increased or diminished expense in the parts so altered, the amount thereof to be allowed to the contractors or owner shall be such as may be equitable and just; and in case such alterations or deviations require additional time for execution, a fair and reasonable amount shall be added to the time stipulated for the completion of the said building, as set forth in the specifications. 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 architects 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 said contractors hereby expressly waive all claim or demand to any allowance for extra work or material that may be furnished, unless in each case such extra work or material shall have been furnished upon a written order from the architects. And should any dispute arise respecting the true construction or meaning of the drawings or specifications, the same shall be decided by the architects and their decisions shall be final and conclusive. Hennessy Bros. [Seal.] Wm. G. Metzger. [Seal.]’
There were four sets of specifications prepared by said architects for the mason, carpenter, metal, and roof work, and for the painting and glass, containing the following provisions: (1) Speciflcation which recited that: ‘In order to secure the completion of the work at the time and in the manner specified, it is hereby declared and set forth that the damages arising from the nonfulfillment of this contract shall be $50 per day for each and every day the work remains undone after the above date, which sum of damages shall be deducted from the contract price as liquidated.’The mill was completed and delivered to appellee on July 21, 1890. During the progress of the work appellee paid appellants $9,500.
Plaintiffs put in evidence architects' certificate of August 25, 1890, and the statement of account thereto appended, as follows:
Aug. 25, 1890. To W. G. Metzger: Hennessy Bros., contractors for masonry, carpentry, painting, and glass, and metal and roof work on your building located S.E. corner of Eighteenth and Rockwell streets, are entitled to $4,419.20.
Statement attached.
This present certificate No. 7, is for $4,419.20 $13,919.20 Final on contract and extras.
This certificate is issued upon an application and affidavit of said R. M. Hennessy, of Hennessy Bros., made Sept. 2, 1890, in accordance with the provisions of section 35 of law relating to subcontractor's liens in force July 1, 1887.
Burham & Root.
(On margin:) Received on account of amount claimed to be due on- not accepted in full. Hennessy Bros.
Plaintiffs put in evidence the following two letters:
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