Keeler v. Herr

• Court: Illinois Supreme Court
• Writing for the Court: WILKIN
• Citation: Keeler v. Herr , 157 Ill. 57, 41 N.E. 750 (Ill. 1895)
• Decision Date: 01 April 1895
• Parties: KEELER v. HERR et al.

157 Ill. 57

41 N.E. 750

KEELER

v.HERR et al.¹

Supreme Court of Illinois.

April 1, 1895.²

Appeal from appellate court, First district.

Assumpsit by Hiero B. Herr and others against James H. Keeler. Plaintiffs obtained judgment, which was affirmed by the appellate court. 54 Ill. App. 468. Defendant appeals. Affirmed.

Flower, Smith & Musgrave, for appellant.

Gregory, Booth & Harlan, for appellees.

WILKIN, C. J.

Appellees sued appellant to recover a balance which they claimed he owed them for constructing a certain dock. The declaration is in assumpsit, setting up a contract between the parties whereby plaintiff agreed to build 1,650 feet of dock on the Calumet river for defendant, according to plans and specifications named in the contract; the defendant to pay them therefor $7.25 per lineal foot,-$2,500 to be paid when 500 feet of the work was complete, $3,000 on the completion of 1,500 feet, and the balance when the whole was finished. Performance of the contract on the part of plaintiffs, and a refusal by the defendant to pay, were properly averred. Issue being joined on pleas of nonassumpsit and nonperformance of the contract, a trial by jury resulted in a verdict and judgment for the plaintiffs for $10,835.20. On defendant's appeal, the appellate court affirmed that judgment, and he now brings the record to this court.

There was no controversy between the parties on the trial, except as to whether the dock had been constructed in conformity with the contract. Plaintiffs offered evidence to the effect that they completed the work, according to the agreement, on the 21st of November, 1890, and that there was then due them, in payment for the same, a balance of $9,962.50, the sum of $2,000 having been paid during the progress of the work. The amount claimed to be due was denied by the defendant on the sole ground that the material used and manner of constructing the dock did not conform to the terms of the contract.

No error is assigned upon the admission or exclusion of testimony. A reversal is urged upon no other ground than that the jury was erroneously instructed, at the instance of the plaintiffs, to the prejudice of the defendant. These instructions, in effect, directed the jury that if the evidence showed that the plaintiffs constructed the dock ‘in substantial conformity to their contract,’ then they were entitled to recover the contract price, leaving it to determine whether there had been such a substantial performance. We think they are erroneous, both because they allow plaintiffs to recover the full contract price upon proof of a ‘substantial performance’ of their contract, and because they submit to the jury the question of performance without any construction of the contract by the court. Taylor v. Beck, 13 Ill. 376;Estep v. Fenton, 66 Ill. 467.

That some of those instructions are justly subject to the last of these objections is not denied by counsel for appellees, but it is insisted that defendant's instructions are subject to the same objection, and that he cannot therefore take advantage of the error; citing Steel Co. v. Martin, 115 Ill. 358, 3 N. E. 456;Packet Co. v. Binninger, 70 Ill. 571. There is force in this position, but we think the judgment of the circuit court should be affirmed on the more substantial and meritorious ground that it clearly appears that the error complained of worked no injury to appellant. All the instructions given on behalf of the plaintiffs went upon the theory that they were entitled to recover the entire contract price. Those given for the defendant, except the fourth, are to the effect that they could only so recover upon proof that they had fully performed the contract. But the defendant's fourth instruction is in the following language: ‘The jury are instructed that, under the written contract in evidence, the defendant was entitled to have erected such a dock as was called for by the terms of the contract, and even though the jury may believe that there has been a substantial performance of the terms of the contract by the plaintiffs, yet, nevertheless, if the jury believe that the terms have not been fully complid with, the jury should allow to the defendant such sum or sums as from the evidence they may believe are reasonableand proper to enable the defendant to complete the dock in the manner stipulated for in the contract.’ This instruction correctly states the law applicable to the facts of the case, and we think it clearly appears that the jury followed it in making the verdict. In contracts like the one in suit, sometimes called ‘building contracts,’ a literal compliance with the specifications is not necessary to a recovery by the contractor. A substantial performance, in good faith, is sufficient. As was said in Sinclair v. Tallmadge, 35 Barb. 602: ‘If there has been no willful departure from the terms of the contract or omission in essential points, and the laborer has nonestly and faithfully performed the contract in all its material and substantial particulars, he will not be held to have forfeited his right to remuneration by reason of mere technical, inadvertent, or unimportant omissions or defects. The...