Sexton v. the City of Chicago.
| Decision Date | 30 September 1883 |
| Citation | 107 Ill. 323,1883 WL 10306 |
| Parties | PATRICK J. SEXTONv.THE CITY OF CHICAGO. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Appellate Court for the First District;--heard in that court on appeal from the Superior Court of Cook county; the Hon. SIDNEY SMITH, Judge, presiding.
Mr. LEONARD SWETT, and Mr. JOHN N. JEWETT, for the appellant:
The reference in the contract to “the plans, diagrams and specifications” made and prepared for the work, refers to those furnished the plaintiff, and upon which he made his bid. He had a right to take them as duplicates of those on file.
Upon a breach by one of the parties to a special contract, the opposite party may recover for labor performed under it upon a quantum meruit. Huntly v. Butts, 1 Scam. 410; Her rington v. Hubbard, Id. 569; Read et al. v. Phillips et al. 4 Id. 42; Bannister v. Read, 1 Gilm. 98; Selby v. Hutchinson, 4 Id. 319; Webster v. Enfield, 5 Id. 299; Wilson v. Bauman et al. 80 Ill. 494; Schillo v. McEwen, 90 Id. 79.
The city having furnished to Sexton a tracing from the original plan in the office, showing the dimensions and weight of the iron rafters, as a plan for him to bid upon, and afterwards having given him said tracing as a plan to do the work by, if Sexton relied upon it as a true copy of the original plan, and did not know to the contrary until he had completed all the work he did, the city is estopped from proving that the original plan on file in the office is different from the tracing furnished Sexton to bid on and do the work by. 2 Smith's Leading Cases, 711; Pickard v. Sears, 6 A. & E. 475; Hicks et al. v. Crams et al. 17 Vt. 455; Howes v. Spicer, 23 Id. 509; Davis v. Bradley, 24 Id. 54; Roe v. Jerome, 18 Conn. 138; Bushnell v. Church, 15 Id. 419.
Mr. FRANCIS ADAMS, and Mr. F. S. WINSTON, Jr., for the appellee:
It is the original plan, and not a tracing, to which the contract refers, and which must be consulted in every case of difference or dispute between the parties. Such a copy is not the original, and can not even be used as evidence when the original can be produced. King et al. v. Worthington et al. 73 Ill. 161; Nodin v. Murray, 3 Campb. 228; Chapin v. Siger, 4 McLean, 378; Marsh v. Hand, 35 Md. 123; Merritt v. Wright, 19 La. Ann. 91; Foot v. Bentley, 44 N. Y. 166; Goodrich v. Weston, 102 Mass. 362.
The city is not estopped to deny the correctness of the tracing, for there is no element of willfulness or fraud shown, which is necessary before an estoppel arises. Davidson v. Young, 38 Ill. 152; People v. Brown et al. 67 Id. 435; Tyler v. Bailey, 71 Id. 34. Upon the point that appellant, if misled by the tracing, was so misled by his own negligence in not examining the original plan, he having had an opportunity so to do, and that in such case there is no estoppel, see Strong v. Livingstone, 8 Bradw. 436; Swannell v. Watson, 71 Ill. 456; Mead v. Munson, 60 Id. 49.
This was an action of indebitatus assumpsit, brought by Patrick J. Sexton, the appellant, in the Superior Court of Cook county, against the city of Chicago, the appellee, to recover a balance claimed to be due for work done and materials furnished by him, and used and appropriated by the city in the construction of the iron work for the new city hall. To the declaration the city filed the plea of non assumpsit, and the cause, by agreement of parties, was submitted to the court without the intervention of a jury, resulting in a finding and judgment for the defendant. On appeal to the Appellate Court for the First District the judgment of the Superior Court was affirmed, and Sexton thereupon appealed to this court.
Notwithstanding the voluminous record before us, the real controversy in the case is confined to very narrow limits. As claimed by appellee, we have nothing to do with the controverted questions of fact raised by the pleadings or evidence in the case. They have all been settled adversely to the appellant, and we have no power or disposition to review them. While this is so, it is nevertheless the duty of this court to examine the evidence bearing upon the issues of fact thus determined, to see what principles of law were involved in the controversy, and whether they were properly applied by the trial court.
On the trial of this cause the court refused to hold certain propositions of law, which we think were appropriate to the facts in the case, and that in doing so there was error, for which the Appellate Court should have reversed the judgment. The refused propositions are as follows:
“6. If, in consequence of differences between the several sets of plans furnished by the city as a guide for estimates of the work then proposed to be let, and in consequence of the use by Sexton of one set of such plans so furnished to him for making his estimates, differences naturally arose between Sexton and the city as to the amount of work then to be let, and Sexton's bid, made upon the plans submitted to him, was accepted by the city, and was made the foundation of the contract between the city and Sexton, which has been offered in evidence, then the words ‘plans,’ ‘diagrams' and ‘drawings,’ mentioned in the contract, should, as between Sexton and the city, be held to refer to the plans, etc., furnished by the city, upon which Sexton based his estimates and his bid, the differences in the sets of plans were the fault of the city or its officials, and the city can not take advantage of its own wrong, to the prejudice of Sexton.
7. If the differences of understanding as to the amount of work to be done resulted from the cause and in the manner suggested in the last preceding proposition, then either the contract must be construed in accordance with the plans, etc., furnished to Sexton, and upon which he based his bid, or there was, as a matter of law, no contract between Sexton and the city, notwithstanding the signing of the paper purporting to be such contract; and in the latter case Sexton is entitled, in the present action, to recover the fair value of the work done and materials furnished by him, and which have been accepted by the city, upon the basis of a quantum meruit.”
In order to fully understand these propositions and their legal relation to the case in hand, it will be necessary to examine to some extent the evidence, bearing in mind the chief object in adverting to the testimony at all is to ascertain whether there is evidence in the record tending to establish the hypothetical case made by the propositions. We say “ tending to establish, ” for, as is well understood, it is not necessary there should be a preponderance of evidence to warrant the giving of such propositions, if otherwise unobjectionable. Our consideration of the evidence then being for the purposes stated, it will only be necessary to refer to such parts of it as, in our judgment, tend to establish the hypothesis in question.
It appears from the record that prior to the 30th of March, 1878, the city of Chicago, with the view of building a new city hall, had, by its architect and the draughtsmen under him, prepared a general plan of the building, which consisted of numerous drawings and specifications, showing, in distinct views or subordinate plans, the different parts of the building, and the different kinds of work and material required in its construction, and the manner in which the same was to be done. These distinct views or subplans were also divided into sections, which were numbered in numerical order. The city had, also, prior to the date last above mentioned, with the view of facilitating bidding on the different parts of the work, and, as we understand it, for the purpose of furnishing each contractor after the work was let with a distinct plan relating mainly to his own work, caused a number of partial copies or duplicates of these subordinate plans of the work to be prepared, some of them showing the stone work, others the iron work, and so on, and also so much of the general plan as was necessary to show the relation of the specific work to it, and that they, together with the general or original plan, were on file in the office of the department of public works belonging to the city,...
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