Leffers v. Hayes

• Decision Date: 06 February 1946
• Docket Number: Gen. No. 10040.
• Citation: 64 N.E.2d 768,327 Ill.App. 440
• Parties: LEFFERS v. HAYES.
• Court: United States Appellate Court of Illinois

327 Ill.App. 440

64 N.E.2d 768

LEFFERS

v.HAYES.

Gen. No. 10040.

Appellate Court of Illinois, Second District.

Dec. 13, 1945.

Rehearing Denied Feb. 6, 1946.

Appeal from Circuit Court, Woodford County; Ray Sesler, Judge.

Action by G. H. Leffers against W. D. Hayes to enforce a mechanic's lien and for damages, wherein defendant filed a counterclaim for merchandise sold to plaintiff and for breach of contract. From the decree, defendant appeals, and plaintiff defendant appeals, and plaintiff cross-appeals.

Reversed and remanded with directions.

Edward F. Riely, of Minonk, for appellant.

Fort & Fort, of Minonk, for appellee.

DOVE, Presiding Justice.

G. H. Leffers, a building contractor, brought suit in the circuit court of Woodford County against W. D. Hayes, to establish and foreclose a mechanic's lien on premises owned by the defendant. The complaint was based on a written contract between the parties, dated September 22, 1934, for the construction of a dwelling house in the City of Minonk at the price of $5902.34, plus extras, and alleged completion of the contract on October 29, 1935, and a balance of $1481.52 to be due and unpaid, including extras furnished.

The defendant answered, admitting the written contract, denying completion, setting up numerous alleged failures and breaches by the plaintiff, disputing some of the charges for extras, setting up a final certificate of the architect under the contract in favor of the plaintiff for $353.00, alleging the value of the extras furnished as not in excess of $328.07, and tendering into court the sum of $682.40, together with the accrued costs. The answer further alleged that the suit could not be maintained because the final certificate of the architect was not disputed within ten days, and thereby became final and binding under the provisions of article 12 of the contract, and alleged that the defendant and his wife were entitled to an estate of homestead in the premises. He also filed a counterclaim for $373.99, including an item of $29.99 for merchandise sold to the plaintiff, and other items on account of alleged breaches of the contract by the plaintiff. Issues were joined, and thereafter the plaintiff filed an amended complaint consisting of two counts, the first of which seeks foreclosure of a mechanic's lien. Paragraph 5 alleges that on or about October 3, 1934, articles 2 to 12, inclusive, of the written contract (except article 9), were mutually set aside and vacated by the parties, and that all of article 9 except the contract price of $5902.34, subject to additions and deductions, was also mutually set aside and vacated; that the defendant directed the plaintiff to proceed with the construction of a dwelling house according to plans and specifications furnished by the defendant to the plaintiff, as modified from time to time; that performance of the latter contract was completed on October 29, 1935; and that $1475.52 was due and unpaid thereunder. The second count is at law for damages on account of alleged breaches of the contract by the defendant and alleged failures to comply therewith, asking damages of $412.20. An order was entered extending the defendant's answer to the amended complaint, and the cause was referred to the master.

Certain of the plaintiff's exceptions to the master's report were sustained, others of his exceptions, and all of the exceptions of the defendants, were overruled, and the court entered a decree finding that the parties, by their respective acts and actions, and their respective lack of acts and actions, vacated and set aside articles 3 and 12, and a portion of article 8, of the written contract, and that the remainder of such written contract is still in force and effect. The decree dismissed the second count of the amended complaint, disallowed certain charges for extras and certain credits claimed by the defendant, allowed the $29.99 item of the counterclaim, and decreed a lien on the premises in favor of the plaintiff for $866.15, ordering a sale in case of default in payment.

The decree further found that the defendant entered into possession and occupation of the residence on July 27, 1935, and that the residence was completed on Octover 29, 1935; that the wife of the defendant had knowledge of the improvement being made, and gave no written notice of any objection or that she intended to save any dower right; that she was not a necessary party on the question of homestead, for the reason that the defendant was the only party who could claim an estate of homestead in the premises, and that her objection that she was joined too late was sustained; and that the architect perpetrated a gross mistake in placing in his final certificate credits to the amount of $252 to the defendant. The cause is here on an appeal by the defendant and a cross appeal by the plaintiff. For convenience they will be hereinafter referred to as appellant and appellee, respectively.

First as to the motions made in this court. Appellant's motion to amend the abstract by inserting therein the date of filing his notice of appeal, corresponding with the date shown in the record, is allowed. Francke v. Eadie, 373 Ill. 500, 26 N.E.2d 853.

A motion by appellee for leave to amend the amended complaint, appellant's motion to strike that motion, and another motion by appellee to strike appellant's reply brief, were taken with the case.

Appellee's motion for leave to amend the amended complaint proposes to strike therefrom paragraph 5 of count 1, above mentioned, and to substitute therefore allegations conforming to the findings in the decree as to the portions of the written contract held to have been set aside and vacated by the parties, and that all the remainder of the written contract is still in full force and effect; also to strike paragraph 8 of count 1; alleging that upon the setting aside of the written contract, the defendant became liable to pay the plaintiff the reasonable value of the materials furnished and services rendered; and by inserting an additional paragraph, alleging in effect that the architect had no authority to insert the items of credit to the defendant mentioned in his final certificate, and committed fraud in so doing. The ground of the motion is that such amendments will make the complaint conform to the proofs.

While all the testimony in the case does not appear in the record, the portions included sufficiently show that the decree is correct as to the portions of the written contract which were set aside and vacated by the parties, and that the remainder of the written contract is still in full force and effect, and the holding is not in any way challenged or complained of by appellant.

There is a general rule of law, invoked by appellant, that a party cannot make one case by his pleading, and another and different case by his proofs. Randolph v. Onstott, 58 Ill. 52, 53:Dorn v. Geuder, 171 Ill. 362, 369, 49 N.E. 492. It is also a familiar rule that before a party is entitled to a decree his allegations and proofs must agree, otherwise his complaint must be dismissed, if no amendment is made, Field v. Field, 319 Ill. 268, 270, 149 N.E. 757; and that a party cannot try a case on one theory in the trial court and on another theory in a court of review. Chicago Title & Trust Co. v. DeLasaux, 336 Ill. 522, 529, 168 N.E. 640;Roof v. Rule, 348 Ill. 370, 375, 180 N.E. 807, 84 A.L.R. 1047. The last mentioned doctrine is applied when no amendment is made in the reviewing court.

While the amended complaint alleged an oral contract, and the trial court found that the work was performed under the written contract (each with the exceptions therein mentioned), it is manifest that the cause of action asserted in the amended complaint grew out of the same transaction set up in the original complaint. That is, the construction of a dwelling house for the price of $5902.34, subject to additions and deductions. If the decree in this case be reversed on the ground that the proofs do not correspond with the allegations of the amended complaint, appellee, on remandment, could amend his amended complaint in this particular, under the provisions of section 46 of the Civil Practice act, Ill.Rev.Stat. 1945, chap. 110, par. 170; Douglas Lumber Co. v. Chicago Home for Incurables, 380 Ill. 87, 98, 43 N.E.2d 535;Metropolitan Trust Co. v. Bowman Dairy Co., 369 Ill. 222, 229, 15 N.E.2d 838. And, upon his so doing, the decree would again be subject to review on the same other questions presented on this appeal. Section 92 of the same act (par. 216), providing in sub-paragraph (a) that a reviewing court may, in its discretion, exercise all or any of the powers of amendment of the trial court, was obviously designed to do away with such circuitous and cumbersome practice. Appellant's answer sufficiently covers the proposed amendment, and he cannot be harmed by its being allowed in this particular in this court. His motion to strike appellee's motion for leave to amend is denied. The amendment, in so far as it conforms to the findings in the decree as to the portions of the written contract which were set aside and vacated by the parties and that the remainder of the written contract is still in full force and effect, is allowed, and is considered as filed. Our conclusions in this respect make it unnecessary to further discuss appellant's contentions that the court erred in finding that the plaintiff was entitled to a mechanic's lien upon grounds other than as alleged in the amended complaint.

As to that portion of the amendment relating to the architect, no facts tending to show any fraud on his part are alleged, and the most that can be said of the allegations is that they allege a want of authority on his part to place the credits in his final certificate, which question is cognizable under the issues, without any additional allegation. That part of the motion to amend, relating to the architect, is denied.

Appellee's motion to...