Mckee v. Brandon

• Decision Date: 30 June 1840
• Citation: 2 Scam. 339,3 Ill. 339,1840 WL 2936
• Parties: JAMES MCKEEv.CHARLES W. BRANDON.
• Court: Illinois Supreme Court

2 Scam. 339

3 Ill. 339

1840 WL 2936 (Ill.)

JAMES MCKEE

v.CHARLES W. BRANDON.

Supreme Court of Illinois.

June Term, 1840.

THIS was an action of covenant commenced in the Will circuit court, by Brandon against McKee, upon the following instrument:

“Articles of agreement made and entered into this 24th July, 1834, between Charles W. Brandon, Jr., of the first part, and James McKee, of the second part, witnesseth, &c. Said Brandon, of the first part, engages with said McKee, to build a dam across the Oplain river, where said McKee has a dam partly made,--he is at liberty to finish out the old dam, or make a new one, which he pleases. The dam is to be built of logs and filled in with rock and gravel, after the manner it is begun, and to be built as high as will carry the water over the highest part of the dam that is now there, when it is covered with plank. It is to be planked as follows; when the dam is built to its height, the logs on the top of the dam are to be flattened on the upper side, and logs are to lie across the ties, not more than four feet apart, and flattened on the upper side in like manner; and the plank are to be pinned on those flattened logs, and to reach from the top of the dam, up the river, to the rock in the bottom of the stream. Said covering of plank is to have the seams broken by covering with plank or slabs, and to be filled in a proper manner with rock and gravel, under the plank, and also covered with rock and gravel on the top of the plank, sufficient to keep the dam safe and tight; and to have the dam finished by the 15th of September next; and to warrant the whole dam to continue a close and tight dam up to its proper height, for one year after the time it is finished. To all this the said Brandon agrees to do and perform. In consideration of the above engagement by the said Brandon, the said McKee, of the second part, promises to pay the said Brandon, one hundred and fifty dollars, when the work is done, and twelve months thereafter to pay him fifty dollars more with interest, and make to him a general warrantee deed to a piece of land which lies on the north side of section sixteen, in township thirty-five, north, range ten east, and is to run north from said line eight rods, and to lie between Bluff and Broadway streets, as the said streets have been laid off by Jeddiah Woolley. To all this the said M'Kee engages and binds himself to do, provided the said dam continues a good dam as above described. In witness whereof, we, the parties aforesaid, interchangeably set our hands and seals, each one retaining a copy.

+-----------------------------------------------------+
                ¦In presence of ¦)¦C. W. BRANDON, Jr. [SEAL.]¦        ¦
                +---------------+-+--------------------------+--------¦
                ¦ISRAEL BROWN,  ¦)¦JAS. MCKEE.               ¦[SEAL.]”¦
                +---------------+-+--------------------------+--------¦
                ¦DANIEL CLEMENT.¦)¦                          ¦        ¦
                +-----------------------------------------------------+
                

The declaration contained five counts, each setting out the articles of agreement in hæc verba. The first count alleged performance of the contract on the part of the plaintiff.

The second count alleged that the defendant extended the time for the completion of the dam to the 15th of October, within which time the plaintiff completed it, and contained specific averments of the performance of each item of his part of the agreement; and averred that the dam remained a “good, close, and tight dam up to its proper height, for one year,” &c.

The third count averred the extention of time to the 15th of October, and that “during the progress of the building and completing of said dam, and whilst said plaintiff was at work on the same, the said defendant was present, and did direct and designate the rock and gravel and other materials which said defendant desired to have used in the building and making of said dam, and did direct the said plaintiff to use the same in the building of said dam.” And averred “that he did use the materials so designated by the said defendant, in and about the building and completing of said dam; and that he did finish and complete said dam by said time so extended, in manner and form, and with materials specified in said contract, and designated as aforesaid, by said defendant, and that said dam did continue as close and tight a dam as could be made with said materials.”

The fourth count set forth the extension of time, as aforesaid, and averred that “from the twenty-fourth day of July, in the year of our Lord one thousand eight hundred and thirty-four, to the fifteenth day of October then next following, the said defendant, in person, did frequently point out to the said plaintiff where to get the materials for the building of said dam, to wit, the rock and gravel, and requested, ordered, and directed the said plaintiff to put into said dam, and to make use of said materials in the building and constructing of said dam, to wit, the rock and gravel which were so pointed out, ordered, and directed by him, the said defendant, as aforesaid;” and that he fulfilled and performed his contract, [stating the particular acts done,] and “warranted the same to be and continue a close and tight dam up to its proper height, for one year after it was finished;” and that “he put into the dam rock and gravel pointed out, ordered, and directed to him” by McKee, the defendant.

The fifth count avers that “in pursuance of the said articles of agreement, he commenced building and constructing said dam, to wit, on the twenty-fourth day of July, in the year of our Lord one thousand eight hundred and thirty-four, and did work on, build, and construct said dam with such materials, and in the manner...