Vt. St. M. E. Church of Quincy v. Brose

• Decision Date: 28 September 1882
• Citation: Vt. St. M. E. Church of Quincy v. Brose, 104 Ill. 206, 1882 WL 10396 (Ill. 1882)
• Parties: VERMONT STREET M. E. CHURCH OF QUINCYv.JOHN G. BROSE.
• Court: Illinois Supreme Court

104 Ill. 206

1882 WL 10396 (Ill.)

VERMONT STREET M. E. CHURCH OF QUINCY

v.JOHN G. BROSE.

Supreme Court of Illinois.

Filed at Springfield Sept. 28, 1882.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the Third District;--heard in that court on appeal from the Circuit Court of Adams county; the Hon. JOHN H. WILLIAMS, Judge, presiding.

Mr. J. F. CARROTT, for the appellant:

By the contract the certificate in writing of the architect or superintendent is a condition precedent to the right of the petitioner to recover, and there is no proof that it was ever had. McAuley v. Carter et al. 22 Ill. 53; Packard et al. v. Van Schoick, 58 Id. 79; Clark et al. v. Pope et al. 70 Id. 128; Coey v. Lehman et al. 79 Id. 173; Downey v. O'Donnell et al. 92 Id. 559.

The decision of the architect is binding in this case, except for fraud shown. Parties to a written agreement are bound by its terms, unless fraud is shown. McAvoy v. Long et al. 13 Ill. 147; Railroad Co. v. Spurck et al. 24 Id. 587; Wallace et al. v. Curtis, 36 Id. 156; Snell et al. v. Brown et al. 71 Id. 134; Stadhard v. Lee, 113 Eng. C. L. 364.

Before payment could be demanded all of the work was to be fully and faithfully performed, to the satisfaction of the architect, and accepted by him. Smith v. Briggs, 3 Denio, 73; Smith v. Brady, 17 N. Y. 173; Glacius et al. v. Black, 50 Id. 145; McCarren v. McNulty et al. 7 Gray, 139; Zaliski v. Clark, 44 Conn. 218; Goodrich v. Van Norwich, 43 Ill. 545; Clarke v. Watson, 114 Eng. C. L. 278; Scott v. Corp. of Liverpool, 60 Id. 334.

Taking possession of the building is not a waiver of the plain requirements of the contract. Smith v. Brady, 17 N. Y. 173; Coey v. Lehman et al. 79 Ill. 173; Munro v. Butt, 92 Eng. C. L. 739; Merford v. Martin, 6 T. B. Mon. 609.

Appellee did not build and complete the church in “a careful, skillful and workmanlike manner,” and therefore he can not recover any compensation for his work, labor and materials. Ellis v. Hamlen, 3 Taunt. 52; Moneypenny v. Hartland, 2 C. & P. 378; Farnsworth v. Garrard, 1 Camp. 38; Denew v. Daverell, 3 Id. 453; Barten v. Butler, 7 East, 479; Harmer v. Cornelius, 5 Com. B. (N. S.) 236; Martin v. Houck, 39 Mich. 431. The contract was entire, notwithstanding payments were to be made in installments as the work progressed, and the entire performance of the work to the full satisfaction of the architect was a condition precedent to the payment of the price, and courts can not absolve men from their legal engagements. School Trustees v. Bennett, 3 Dutch. 513; Grossman v. Brown, 32 N. J. Eq. 43; Jennings v. Camp, 13 Johns. 94.

Where a party engages, unconditionally, by express contract, to do an act, performance is not excused by inevitable accident or other unforeseen contingency not within his control. Adams v. Nichols, 19 Pick. 275; Schwartz v. Saunders, 46 Ill. 21; Chitty on Contracts, 568.

Mr. WILLIAM W. BERRY, for the appellee:

Where there are two clauses in a contract so totally repugnant to each other that they can not stand together, the former shall be received and the latter rejected. Shepard's Touchstone, 88; Chitty on Contracts, (9th Am. ed.) 94.

A sweeping clause, followed by a specific enumeration in a written contract, will be controlled by the latter, where there is manifest conflict or repugnancy between the two. Bishop on Contracts, sec. 595; Pollock on Contracts, 409; Rooke v. Kensington, 3 Kay & J. 753; Bulkley v. Wilford, 8 D. & R. 542.

In a doubtful case, the interpretation which the parties themselves have, by their conduct, practically given their contract, will prevail. Bishop on Contracts, sec. 598; Chicago v. Sheldon, 9 Wall. 50; Garrison v. Nute, 87 Ill. 215.

Where, by the terms of a contract, an architect's certificate of fulfillment is a condition precedent to payment, and the architect unreasonably and in bad faith refuses the certificate, the builder may recover under other proof of performance. Thomas v. Fleury, 26 N. Y. 26. Mr. CHIEF JUSTICE SCOTT delivered the opinion of the Court:

The petition in this case was brought by John G. Brose, against the Trustees of the Vermont Street M. E. Church, to establish a mechanic's lien on the property belonging to the defendant corporation. Under a written contract between the parties, petitioner undertook to erect for defendants a church edifice, according to plans and specifications referred to and made a part of the contract. That part of the work which petitioner was to do was not completed by the time mentioned in the contract. It is alleged it was on account of the fault of defendants the delay occurred. The case is not defended on the ground the work was not finished within the time limited by the contract. It is sufficiently shown, both by the averments of the petition and the evidence, the time for doing the work was extended by mutual agreement.

In two particulars there is some ambiguity in the contract,--first, who was to furnish the “stone for the front and the footing;” and second, to whose ““full and complete satisfaction” was the work to be “finished and completed;” but it is thought it readily admits of a construction consistent with the acts of the parties. By ascertaining the meaning of the contract in these respects the case will be relieved of much difficulty. Considering the questions in the order stated, it will be seen that in one part of the contract it is provided the work shall be completed by a day fixed, “weather permitting, and stone for front and footing being furnished.” Standing alone, this clause would be readily understood to obligate defendants to furnish “stone for front and footing,” because petitioner was not bound to finish the work unless the weather would permit, and the “stone for front and footing” was furnished. The difficulty arises out of a clause in the covenanting part of the contract on the part of the defendants, wherein they agree to pay petitioner a certain sum of money in consideration he will furnish “all materials, and fully and faithfully execute the work to the full and complete satisfaction of the architect,” and at the time mentioned. Following, as this does, the former provision cited, it may well be understood to bind petitioner only to furnish “all the materials” necessary to complete the work which defendants had not previously contracted to furnish. It will be seen the subsequent conduct of the parties renders this construction of the contract reasonably certain. It is allowable always to look to the interpretation the contracting parties place on their agreement, either contemporaneously or in its performance, for assistance in ascertaining its true meaning. No extrinsic aid can be more valuable. In their original answer defendants admitted the allegation of the petition they were to furnish the “stone for front and footing,” but in their answer to an amended petition that admission was withdrawn. Without attaching much importance to what the answers contained, as neither of them was under oath, it is of much more importance to ascertain what the parties did in the performance of the contract. In that respect their acts are the result of their understanding of their agreement, and afford valuable aid in ascertaining its meaning. Looking at what was done, it is seen defendants from first to last, while the work was in progress, recognized their obligation to furnish “stone for front and footing,” and did in fact furnish that which was used in the building. Both parties so understood the agreement, in this respect, while it was being performed, and their conduct is consistent with a reasonable construction of the contract.

As respects the second inquiry, it is provided the work is to be done by petitioner in a skillful and workmanlike manner, to the “full and complete satisfaction of Geo. H. Edbroke, architect, or his assistant superintendent, John Crockett.” Under this clause of the agreement, if the work was done to the satisfaction of either party named it would seem it would be in conformity with the contract. It is not agreed that both of them shall be satisfied with the work. Should either of them approve the work it would be sufficient. It is true, in a subsequent clause of the agreement it is said the work shall be done to the “full and complete satisfaction of Geo. H. Edbroke, architect.” Here again the conduct of the parties renders valuable aid in ascertaining the true construction of the agreement in this respect. It is evident it was not intended that Edbroke, who drew the plans and specifications, was to have the immediate and personal superintendence of the work. He says himself he did not see the work from the time of its commencement till he was called to inspect it in February, 1877, and that John Crockett was appointed by him local superintendent. What he did in this respect conforms to a true understanding of the contract. The work was to be done under the supervision of Crockett, and if satisfactory to him, that would be a compliance with the contract. Both by the terms of the agreement and the appointment of the principal architect, the local superintendent had the supervision of the work as it was being done, and it would be most unreasonable if, after the work had been done under the immediate direction of the local superintendent, that Edbroke should be permitted afterwards to say it was not done to his “satisfaction,” and reject all that petitioner had done in the erection of the building. This would be most unreasonable, as well as unjust, and especially so when Edbroke had not seen the work as it progressed, and had absented himself, and left it all to the supervision of Crockett, the local superintendent. Such a result could not have been in the contemplation of the parties, nor will the contract bear any such construction.

Having ascertained the meaning of the contract, so far as relates to the principal matters in contention, but few words of illustration will be necessary to dispose of the...