Korf v. Lull

• Decision Date: 30 September 1873
• Citation: 1873 WL 8623,70 Ill. 420
• Parties: FREDERICK KORFv.ANN E. LULL.
• Court: Illinois Supreme Court

70 Ill. 420

1873 WL 8623 (Ill.)

FREDERICK KORF

v.ANN E. LULL.

Supreme Court of Illinois.

September Term, 1873.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.

Mr. FREDERICK S. MOFFETT, and Mr. ADONIRAM CARTER, for the appellant.

Mr. JOHN WOODBRIDGE, for the appellee.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

This proceeding was to establish a mechanic's lien. The work and labor were performed and the materials furnished under a written contract to do the carpenter work, which, by the specifications, was to include the plastering, plumbing and painting on a brick building which appellee was having erected on the premises described in the petition. Extra work was done, and materials furnished outside the contract, for which a lien is claimed.

The defense alleged in the answer is, the work was not finished within the time limited, nor was it done in accordance with the contract. It is insisted, by reason of the inferiority of the workmanship and materials, and the delay in completing the work, appellee sustained damages exceeding any sum that could be due to appellant. The master to whom the cause had been referred, reported there was due appellant, on the contract, and for extra work and materials, $847.59. Exceptions taken to the report were sustained, and the petition dismissed. That decision is assigned for error.

There is but little controversy between the parties in regard to the extra labor and materials. The master seems to have deducted from the account, all the evidence shows appellee was entitled to have deducted on account of erroneous charges. It is insisted, the quality of the workmanship and materials can not be inquired into by reason of two facts alleged in the petition, neither of which is denied in the answer: First, that appellee accepted the work without objection; and second, she is concluded by the action of the architects, upon whose certificate that the terms of the contract had been complied with, she had expressly agreed to pay for the labor and materials furnished.

The first position assumed is not tenable. The principal item of damage, it is claimed, arises out of the defective manner in which the plastering was done. A party who has accepted work, is not held to have waived defects in it, if, like plastering, it may have latent defects which are not open to inspection. The same may be said of other work not open to inspection when it was accepted. Van Buskirk v. Murden, 22 Ill. 446.

As to the second point, the certificate of the architects must be deemed and taken as conclusive of the rights of the parties, unless impeached for fraud or mistake, neither of which is alleged. The agreement expressly provided, the work should be done under the direction of the architects, and upon their certificate that the terms of the contract had been complied with, and upon sufficient evidence all claims for labor and materials against the contractor had been discharged, the consideration agreed upon was to be paid. The certificate was made by the architects in exact compliance with the agreement, and exhibited to appellee before suit was brought. Proof was made, there were no liens on the building in favor of sub-contractors under appellant. The prima facie case made by proof of these facts, and of the amount unpaid, was not overcome by anything contained in the record. It is not proven the certificate of the architects was obtained by any artifice, fraud or mistake. There is no suggestion, by the evidence or otherwise, that it was not obtained in good faith.

The contract for the plastering was sub-let by appellant, and was done under the direction of the architect in charge of the work. It was paid for on the certificate of the architect present, superintending the work for appellee, and this ought to be held to operate as an acquittance to appellant. If there were any defects, it is supposed the architect possessed skill enough to have detected them as the work progressed. He ought to have done so, and withheld his approval. It would impose a great hardship upon appellant, to make him liable for damages on account of the plastering, after the sub-contractor had been fully paid under the direction of appellee's own agent. The doctrine of the conclusive character of the certificate of the architect selected by the parties, under whose directions the work is to be performed, and who is to determine when the terms of the contract have been complied with, was settled by this court in McAuley v. Carter, 22 Ill. 53, where the exact point was involved, on the authority of the Board of Canal Trustees v. Lynch, 5 Gilm. 521, and McAvoy v. Long, 13 Ill. 147.

The principle is, the decision of the umpire agreed upon is final, from which there is no appeal, and can only be attacked for fraud or evident mistake. In McAuley v. Carter, supra, it was definitely ruled, where no notice was required by the contract, none was necessary before applying to the architect for his decision. He was declared to be the sole judge as to the matters submitted to his supervision, and both parties were held to have all necessary notice, and are bound by his acts.

This rule imposes no hardship. Parties...