Smith v. Gray

Decision Date24 April 1925
Docket NumberNo. 15991.,15991.
Citation316 Ill. 488,147 N.E. 459
CourtIllinois Supreme Court
PartiesSMITH v. GRAY.

OPINION TEXT STARTS HERE

Error to Third Branch Appellate Court, First District, on Appeal from Municipal Court of Chicago; Hosea W. Wells, Judge.

Action by F. P. Smith, trading as the F. P. Smith Wire & Iron Works, against William H. Gray. The Appellate Court (232 Ill. App. 624) affirmed a judgment of the Municipal Court of Chicago for plaintiff, and defendant brings certiorari.

Reversed and remanded.Ralph B. Gray, Charles R. Young, and Arthur A. Basse, all of Chicago, for plaintiff in error.

Davis, Ramsay, Kelly & Kracke, of Chicago (Brode B. Davis, Edmund P. Kelly, and Charles R. Sercomb, all of Chicago, of counsel), for defendant in error.

DUNCAN, C. J.

F. P. Smith, trading as the F. P. Smith Wire & Iron Works, obtained a judgment in the municipal court of Chicago against William H. Gray for $3,911.01 for labor and materials furnished under a written contract, including extras. The judgment was affirmed by the Appellate Court on appeal, and this court awarded a writ of certiorari to review the judgment.

The contract sued on in this case is in two parts, in the form of letters addressed to Gray, plaintiff in error (herein called defendant), by defendant in error F. P. Smith (herein called plaintiff), and signed by both parties; the first or original contract being dated May 2, 1916, and the second or supplemental contract September 27, 1916. By the original contract plaintiff agreed to furnishmaterials for, and to change according to requirements shown by the architect's drawing, the stairs on seven floors of the building known as the Board of Trade Hotel; the stairs from the second to the third floor to be new and the one from the basement to the second floor to be also new and constructed of plate and angle stringers, checkered steel treads, and no risers, with pipe handrails where necessary. The work on the stairs was to be done on the basis of cost, plus 10 per cent., and not to exceed $200 per floor, or a total of $1,400 for the seven floors. Plaintiff was also to furnish 3 new Lally columns for the basement and put in 18 elevator doors as specified, using present sills but furnishing all new materials for tracks, hangers, locks, etc.; also 7 stair hall doors and 1 door on first floor corridor and one to alley, all made of materials as specified and to be 3 feet wide and 7 high. Plaintiff was to have the option of furnishing pressed steel frames in place of the specified channel iron frames, furnish steel tops from two elevator cabs, four cast-iron thresholds for enterance doors, and include one three-foot stairway fire escape but no standpipe-all for the sum of $4,600, erected. Payment was to be made by defendant on the 10th day of each month for 85 per cent. of the work erected during the preceding month, form estimates furnished by plaintiff; the amount of each estimate to be mutually agreed on.

The second or supplemental contract, omitting date and signatures, is in this language:

‘In making the bid for putting in the fire escape on the northeast corner of the building, it was figured at $1,235, which figure Mr. W. H. Gray agrees, in order not to delay the work further, to pay $2,000 for, which will make a difference of $765 additional. F. P. Smith agrees to get proper permits from the city for building the same and furnish final inspection from the city.’

The work was to begin at once after the signing of the contract, but no time was fixed for its completion.

The contention of plaintiff is that he has performed the entire contract covered by the original and supplemental contracts; that he is entitled to recover the $4,600 named in the original contract plus the $765 mentioned in the supplemental contract, and in addition thereto $568.81 for 10 other items of extras agreed on and furnished from July 1, 1916, to November 23, 1916, making a total of $5,933.81, less a cash payment of $2,000 made by the defendant July 15, 1916. He also makes a further claim of $704.80 for interest up to July 28, 1920, the date of his affidavit of claim, together with all further interest that may accrue up to the rendering of final judgment.

The defendant filed an affidavit of merits, stating, in substance, that being about to remodel the Board of Trade building he engaged a reputable architect to prepare the necessary plans, drawings, and specifications; that it was contemplated to open the hotel for business in July or August, 1916; that the plans, specifications, and drawings were prepared and delivered to plaintiff in May, 1916, and contained the provision that the work upon the building was to begin on the date of the contract; that the plans and specifications and contracts included the erection and installation of a suitable three-foot stairway fire escape upon the outside of the building to meet the approval and pass the inspection of the building department of Chicago; that prior to entering into the contract plaintiff made a careful examination of the plans and specifications and contracts and of the building to which the fire escape was to be attached;that but for the unreasonable delay of plaintiff in erecting the fire escape the hotel could and would have been open for business at least 2 1/2 months before it actually was, and that the delay was solely chargeable to plaintiff; that under the conditions then existing among contractors in Chicago, defendant was unable to secure the work to be done by any other contractors engaged in structural iron work, which plaintiff well knew; that plaintiff sought to compel defendant to pay for the fire escape the additional sum of $765 named in the supplemental contract for its erection and charged it to defendant in his affidavit of claim as ‘extra steel for bracing walls'; that the extra steel for such purpose was never furnished, and there is no consideration for the supplemental contract; that defendant frequently urged plaintiff to complete the erection of the fire escape, but he unreasonably delayed so doing, and the same was not completed until November 27, 1916, to the damage of defendant in the sum of $9,409.50, including $900 damage by delay to other work.

Defendant also filed what he calls a plea of set-off, which includes the $9,409.50 damages included in his plea of recoupment. The former plea also includes a claim of $800 for about a ton and a half of brass removed from the elevator walls and claimed and taken by plaintiff and which defendant insists he was not entitled to under the contract; also, $300 for plaintiff's share of cost of power and elevator service during construction and remodeling. In this plea of set-off are also included other items of overcharge by plaintiff amounting to $1,486.95, for which defendant claims he is entitled to credit.

The work of repairing and remodeling the building on the inside was begun immediately after the signing of the original contract by the parties, and there is no claim that this work was not done according to the contract and without delay. The only question that defendant raises in the argument as to the charge for this work is that as against that claim he was entitled to a credit of $40 for doorstops not properly furnished, and which was practically conceded by plaintiff and apparently allowed by the jury; also, that he was entitled to a set-off for the value of the brass taken away from the building by plaintiff. Defendant further claimed that plaintiff was not entitled to interest.

The principal contention of defendant is that the supplemental contract of September 27, 1916, is void for want of sufficient consideration; that the additional charge of plaintiff of $765 for constructing the fire escape cannot be recovered by plaintiff for said reason; and that by reason of the unnecessary delay in constructing the fire escape defendant was greatly damaged and that he should be allowed the sum claimed by his pleas. The contention of plaintiff is that the brass in question was rightly his by reason of the provisions of the ‘specifications' from which he ‘figured the contract’; that he is not responsible for the delay in constructing the fire escape; that there was a sufficient consideration for the supplemental contract; that the delay in constructing the fire escape was not attributable to him, but was caused by reason of the fact that the building department of the city or Chicago would not approve the plans agreed on by plaintiff and defendant for the construction of the fire escape, necessitating extra material and work in constructing the same under the supplemental contract.

The substance of the plaintiff's evidence, as we understand it, is that immediately after the contract was entered into, he began making his shop drawings for the construction of the work by his men in accordance with the plans, specifications, and drawings furnished him by defendant's architect and from which drawings he had figured the work. One of his workmen went to defendant's building to drill holes for anchors. When he drilled into the wall, which was of red pressed brick, he found it had a hollow center, and that the wall as constructed was not sufficiently strong to carry the fire escape, and so reported to the draftingdepartment. This was the first knowledge that plaintiff had of this condition of the wall, and he at once stopped the drilling for the anchors. He then presented the plans and drawings for the fire escape to the building department of the city, and the city refused to license or allow the fire escape to be built on the wall as planned unless the wall was in some manner properly strengthened. Plaintiff reported this fact to defendant, who said he would look into the matter. Defendant and plaintiff for the next six or eight weeks or more undertook to agree on a plan by which the fire escape could be built under the ordinances of the city. They discussed the matter with one another during this time and with the city...

To continue reading

Request your trial
18 cases
  • Servbest Foods, Inc. v. Emessee Industries, Inc.
    • United States
    • United States Appellate Court of Illinois
    • March 17, 1980
    ...the meaning of the statute. (Alco Standard Corp. v. F. & B. Manufacturing Co. (1972), 51 Ill.2d 186, 281 N.E.2d 652; Smith v. Gray (1925), 316 Ill. 488, 147 N.E. 459; Murray v. J. M. Doud & Co. (1897), 167 Ill. 368, 47 N.E. 717; Haas v. Cravatta (1979), 71 Ill.App.3d 325, 27 Ill.Dec. 414, 3......
  • St. Joseph Hospital v. Corbetta Const. Co., Inc.
    • United States
    • United States Appellate Court of Illinois
    • June 3, 1974
    ...(1906), 124 Ill.App. 151, 156--157; Sanford Coal Co. v. Wisconsin Bridge & Iron Co. (7th cir. 1923), 293 F. 735, 737; Smith v. Gray (1925), 316 Ill. 488, 499, 147 N.E. 459. Cases also exist and are here cited where the contract did require an architect's certificate but such certificate eit......
  • Superior Structures Co. v. City of Sesser
    • United States
    • United States Appellate Court of Illinois
    • February 2, 1996
    ...v. Village of Carpentersville (1981), 100 Ill.App.3d 544, 550, 56 Ill.Dec. 101, 106, 427 N.E.2d 181, 186, citing Smith v. Gray (1925), 316 Ill. 488, 499, 147 N.E. 459, 464. Interest statutes are in derogation of the common law and must be strictly construed. (See Summers v. Summers (1968), ......
  • Mucha v. King
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • June 23, 1986
    ...See, e.g., Lindsey v. Rosen, 255 Ill.App. 21, 26, rev'd on other grounds, 335 Ill. 402, 167 N.E. 89 (1929); Smith v. Gray, 316 Ill. 488, 496, 147 N.E. 459, 463 (1925); Farnsworth, Contracts Sec. 4.21 The essential point, though, is that the alleged breach of the consignment agreement that d......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT