Michaelis v. Wolf

• Decision Date: 22 January 1891
• Citation: 136 Ill. 68,26 N.E. 384
• Parties: MICHAELIS v. WOLF et al.
• Court: Illinois Supreme Court

136 Ill. 68

26 N.E. 384

MICHAELIS

v.WOLF et al.¹

Supreme Court of Illinois.

Jan. 22, 1891.

Appeal from appellate court, first district.

Bill by Frederick W. Michaelis against Sarah Wolf, the Conrad Seipp Brewing Co., Thies J. Lefens, Henry Meiselbar, and Sigmund Zeisler, to foreclose a mechanic's lien. The bill was dismissed for want of equity, and the appellate court affirmed the decree. Complainant appeals.

Levi Sprague, for appellant.

M. Salomon, for appellee Wolf.

BAKER, J.

This is a bill prosecuted by Michaelis, the appellant, for the enforcement of a mechanic's lien upon a certain lot and premises of Sarah Wolf, one of the appellees, for the sum of $1,450, claimed to be due and unpaid for the erection of a three-story and basement brick building thereon. The other appellees are the holders of trust-deeds and incumbrances on the lot. The house was constructed under a written contract, which provided that it should be erected and completed in accordance with certain plans, drawings, and specifications, and under the direction and personal supervision and to the satisfaction of Edward G. Elcock, architect. The contract price for the work and materials was $5,450, and it was to be paid in six installments,-the first three, aggregating $2,000, at various stages of the work; the fourth, of $2,000, when the building was finished; the fifth, of $1,000, 30 days thereafter; and the sixth, of $450, 6 months thereafter. It was by the contract provided ‘that in each case of the said payments, a certificate shall be obtained from and signed by the said Edward G. Elcock, architect, to the effect that the work is done in strict accordance with the drawings and specifications, and that he considers the payment properly due; said certificate, however, in no way lessening the total and final responsibility of the contractor, neither shall it exempt the contractor from liability to replace work if it be afterwards discovered to have been done ill, or not according to the drawings and specifications either in execution or materials.’ The first three and the fourth installments of the contract price have been paid, amounting in all to $4,000. This suit is for the fifth and sixth installments.

Where, in a building contract, provision is made for the payment of the price, or a portion or portions of such price, upon the certificate or certificates of the architect in charge of the construction of the building, the obtaining or presentation of such certificate or certificates is a condition precedent to the right to require payment, and such condition must be strictly complied with, or else a good and sufficient excuse shown for not complying therewith. Such compliance with the condition precedent, or excuse for non-compliance, must be averred in the pleadings, and established by the evidence. And the rule in question, requiring compliance or excuse for non-compliance with a condition precedent, applies as well to a proceeding in equity as to a suit at law. Barney v. Giles, 120 Ill. 154, 11 N. E. Rep. 206; Downey v. O'Donnell, 86 Ill. 46;Wolf v. Michaelis, 27 Ill. App. 336. In this case the bill, as amended, does not show that certificates of the architect were obtained for the fifth and sixth installments of the contract price, but it does allege that appellant demanded of the architect certificates for said installments; but that said architect, acting in furtherance of a conspiracy entered into with appellee Sarah Wolf and her husband to cheat and defraud him, appellant, fraudulently withheld such certificates, and refused to issue the same; that he fraudulently alleged the building had not been completed according to contract; that the work was not well done; and that the materials used were not good, merchantable materials; and that thereby said Sarah Wolf had sustained damages to the full amount unpaid upon the contract. It further avers the completion of the building in a good and workman-like manner, and with good,...