Int'l Cement Co. v. Beifeld

• Decision Date: 21 April 1898
• Parties: INTERNATIONAL CEMENT CO. v. BEIFELD.
• Court: Illinois Supreme Court

173 Ill. 179

50 N.E. 716

INTERNATIONAL CEMENT CO.

v.BEIFELD.¹

Supreme Court of Illinois.

April 21, 1898.

Appeal from appellate court, First district.

Morris Beifeld filed a claim against the insolvent estate of Clyde D. Armstrong, who had made a voluntary assignment. The International Cement Company, another creditor of the estate, filed exceptions to his claim. A judgment rendered in favor of claimant was affirmed in the appellate court (67 Ill. App. 110), and the excepting creditor appeals. Reversed.David S. Geer (Edward Roby, of counsel), for appellant.

Max Pam and Moses, Rosenthal & Kennedy, for appellee.

This is an appeal from a judgment of the county court allowing a claim of $3,272 against the assets in the hands of William Spinks, assignee of Clyde D. Armstrong, in a voluntary assignment proceeding. The judgment of the county court has been affirmed by the appellate court, where it was taken by writ of error. The present appeal is prosecuted from such judgment of affirmance entered by the appellate court. The appellee, Beifeld, filed a claim against the insolvent estate of Armstrong for $5,691.88. Exceptions were filed to the claim by the appellant, the International Cement Company, another creditor of the estate. The county court proceeded to hear the proofs and allegations of the parties, and allowed a trail by jury thereon. The jury considered the case under instructions from the county court, and returned a verdict of $3,272, upon which verdict, after overruling a motion for new trial, judgment was entered. The contest is between appellant and appellee, who are both creditors of the estate. The facts out of which the claim of the appellee arises may be stated as follows: On July 30, 1894, appellee made a contract with Felix & Marston for the construction of a warehouse in the city of Chicago. On August 6, 1894, the insolvent, Armstrong, and the appellee made a contract, by the terms of which Armstrong agreed to do the mason work on said warehouse. Armstrong failed to fulfill his contract according to the terms thereof, and the claim of appellee is based upon said contract. The statement of appellee's claim, as presented under oath to the assignee, sets forth that the contract price for the work, including labor and materials, was $14,000.00; that the work was to be completed by October 1, 1894, and Armstrong to pay $20 a day as liquidated damages for each day's delay in completion beyone that time; that appellee furnished Armstrong, as part of said contract, materials to the value of $1,549.75, which were applied in reduction of the sum to be paid Armstrong for the work under the contract; that immediately before the assignment by Armstrong, which was made on September 10, 1894, he ceased doing work under the contract, and appellee, in accordance with the terms thereof, served notices therein required, and proceeded to do said mason work; that the appellee supplied materials in the completion of said contract for mason work, for which there is due him $8,3332.16; that he furnished labor to complete the same, and paid therefor $8,629.48, claimed to be due him; that appellee also expended in and about said work, for materials, labor, etc., $630.49, which is also due him; that under said contract there is due appellee, on account of liquidated damages by reason of failure to completethe work in time, $1,200; that extra work was done by Armstrong amounting to about $650; that the amount coming to Armstrong under the contract, and for extra work, was $14,650; that the several amounts due appellee under the contract, as above set forth, added together, make $20,341.88; and that, deducting from the latter amount, $14,650, there is due appellee a balance of $5,691.88. In the course of the proceedings, rules were made upon the appellee to file bills of particulars. In answer to one of said rules, he filed a copy of said contract, dated August 6, 1894. The twelfth clause of the contract between the appellee and Armstrong is as follows: ‘Should the party of the first part at any time refuse or neglect to supply a sufficiency of properly skilled workmen, or of materials of the proper quality, or fail in any respect to prosecute the work with promptness and diligence, or fail in the performance of any of the agreements on his part herein contained,-such refusal, neglect, or failure being certified by the architect,-the party of the second part [Beifeld] shall be at liberty, after three days' written notice to the party of the first part, to provide any such labor or materials, and to deduct the cost thereof from any money then due or thereafter to become due to the party of the first part under this contract; and if the architect shall certify that such refusal, neglect, or failure is sufficient ground for such action, the party of the second part shall also be at liberty to terminate the employment of the party of the first part for the said work, and to enter upon the premises, and take possession of all materials thereon, and to employ any other person or persons to finish the work, and to provide the materials therefor; and, in case of such discontinuance of the employment of the party of the first part, he shall not be entitled to receive any further payment under this contract until the said work shall be wholly finished, at which time, if the unpaid balance of the amount to be paid under this contract shall exceed the expense incurred by the party of the second part in finishing the work, such excess shall be paid by the party of the second part to the party of the first part, but, if such expense shall exceed such unpaid balance, the party of the first part shall pay the difference to the party of the second part. The expense incurred by the party of the second part, as herein provided, either for furnishing materials or for finishing the work, and any damage incurred through such default, shall be audited and certified by the architect, whose certificate thereof shall be conclusive upon the parties.’ Among the exceptions filed by the appellant to the claim of the appellee in the county court was an exception denying that Armstrong ceased doing any work under the contract, or that he neglected the contract or permitted the same to go unfinished, or that he violated the contract in any respect, and averring that it was unnecessary for the appellee to buy materials and...