Int'l Cement Co. v. Beifeld

CourtIllinois Supreme Court
Writing for the CourtMAGRUDER
Citation173 Ill. 179,50 N.E. 716
PartiesINTERNATIONAL CEMENT CO. v. BEIFELD.
Decision Date21 April 1898

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.


[173 Ill. 182]

[50 N.E. 717]

David S. Geer (Edward Roby, of counsel), for appellant.

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


[173 Ill. 179]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 [173 Ill. 180]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 complete[173 Ill. 181]the 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...

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19 practice notes
  • Evans v. Cheyenne Cement, Stone & Brick Company, 673
    • United States
    • United States State Supreme Court of Wyoming
    • March 24, 1913
    ...85 N.Y.S. 323; Diehl v. Schmalacker, 57 id. 244; Guthat v. Gow, 95 Mich. 527; Hennessy v. Metzger, 152 Ill. 505; Cement Co. v. Beifeld, 173 Ill. 179; McAlpine v. Trustees, 101 Wis. 468; McNamara v. Harrison, 81 Ia. 486; Michaelis v. Wolf, 136 Ill. 68; Mundy v. L. & N. R. Co., 67 F. 633; Har......
  • Hollingsworth v. Leachville Special School District, 192
    • United States
    • Supreme Court of Arkansas
    • February 26, 1923
    ...by both was necessary before the owner would be justified in terminating the contractor's employment. 30 Ind.App. 342, 65 N.E. 1061; 173 Ill. 179, 50 N.E. 716; 165 Cal. 497, 133 P. 280, Ann. Cases, 1916-C, 44; 193 Mo.App. 132, 182 S.W. 143. See also 144 N.Y. 691, 39 N.E. 394; 157 N.Y.S. 782......
  • Long v. Am. Sur. Co. of N.Y.
    • United States
    • United States State Supreme Court of North Dakota
    • June 29, 1912
    ...& Deposit Co., 145 Ala. 335, 40 So. 415, 5 L. R. A. (N. S.) 418, 117 Am. St. Rep. 45, 8 Ann. Cas. 241;International Cement Co. v. Beifeld, 173 Ill. 179, 50 N. E. 716;U. S. F. & G. Co. v. Thaggard et al., 130 Ga. 701, 61 S. E. 726;Cowdery v. Hahn et al., 105 Wis. 455, 81 N. W. 882, 76 Am. St......
  • Cowles v. J. C. Mardis Co., No. 33361.
    • United States
    • United States State Supreme Court of Iowa
    • March 15, 1921
    ...W. 656;Ross v. McArthur, 85 Iowa, 206, 52 N. W. 125;Miller v. Railway, 132 Iowa, 418, 108 N. W. 302;International Cement Co. v. Beifeld, 173 Ill. 179, 50 N. E. 716;Bonding Co. v. Gibson County, 127 Fed. 671, 62 C. C. A. 397. Counsel for plaintiff cite no authority on this proposition, and t......
  • Request a trial to view additional results
19 cases
  • Evans v. Cheyenne Cement, Stone & Brick Company, 673
    • United States
    • United States State Supreme Court of Wyoming
    • March 24, 1913
    ...85 N.Y.S. 323; Diehl v. Schmalacker, 57 id. 244; Guthat v. Gow, 95 Mich. 527; Hennessy v. Metzger, 152 Ill. 505; Cement Co. v. Beifeld, 173 Ill. 179; McAlpine v. Trustees, 101 Wis. 468; McNamara v. Harrison, 81 Ia. 486; Michaelis v. Wolf, 136 Ill. 68; Mundy v. L. & N. R. Co., 67 F. 633; Har......
  • Hollingsworth v. Leachville Special School District, 192
    • United States
    • Supreme Court of Arkansas
    • February 26, 1923
    ...by both was necessary before the owner would be justified in terminating the contractor's employment. 30 Ind.App. 342, 65 N.E. 1061; 173 Ill. 179, 50 N.E. 716; 165 Cal. 497, 133 P. 280, Ann. Cases, 1916-C, 44; 193 Mo.App. 132, 182 S.W. 143. See also 144 N.Y. 691, 39 N.E. 394; 157 N.Y.S. 782......
  • Long v. Am. Sur. Co. of N.Y.
    • United States
    • United States State Supreme Court of North Dakota
    • June 29, 1912
    ...& Deposit Co., 145 Ala. 335, 40 So. 415, 5 L. R. A. (N. S.) 418, 117 Am. St. Rep. 45, 8 Ann. Cas. 241;International Cement Co. v. Beifeld, 173 Ill. 179, 50 N. E. 716;U. S. F. & G. Co. v. Thaggard et al., 130 Ga. 701, 61 S. E. 726;Cowdery v. Hahn et al., 105 Wis. 455, 81 N. W. 882, 76 Am. St......
  • Cowles v. J. C. Mardis Co., No. 33361.
    • United States
    • United States State Supreme Court of Iowa
    • March 15, 1921
    ...W. 656;Ross v. McArthur, 85 Iowa, 206, 52 N. W. 125;Miller v. Railway, 132 Iowa, 418, 108 N. W. 302;International Cement Co. v. Beifeld, 173 Ill. 179, 50 N. E. 716;Bonding Co. v. Gibson County, 127 Fed. 671, 62 C. C. A. 397. Counsel for plaintiff cite no authority on this proposition, and t......
  • Request a trial to view additional results

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