Waggeman v. Bracken

• Decision Date: 30 September 1869
• Citation: 52 Ill. 468,1869 WL 5476
• Parties: JOHN WAGGEMANv.DANIEL J. BRACKEN.
• Court: Illinois Supreme Court

52 Ill. 468

1869 WL 5476 (Ill.)

JOHN WAGGEMAN

v.DANIEL J. BRACKEN.

Supreme Court of Illinois.

September Term, 1869.

APPEAL from the Circuit Court of Peoria county; the Hon. S. D. PUTERBAUGH, Judge, presiding.

The opinion states the case.

Messrs. COOPER & Moss, for the appellant.

Mr. J. S. STARR and Messrs. JOHNSON & HOPKINS, for the appellee.

Mr. JUSTICE LAWRENCE delivered the opinion of the Court: This was an action brought by Bracken against Waggeman, to recover a balance due for building a house. The plaintiff recovered a verdict and judgment.

The point chiefly relied upon by appellant is, that the court erred in excluding from the jury a certain article of agreement, which the appellant insists was the contract under which the house was built, while the appellee claims there was no special contract. The recovery in the circuit court was upon a quantum meruit.

It appears that Bracken, having furnished Waggeman with certain written estimates of the different items of expense, based upon the plans and specifications, drew up a formal article of agreement, purporting to be made between Bracken, as party of the first part, and Waggeman, as party of the second part, by which Bracken was to bind himself to furnish certain materials and perform certain labor as set forth in detail in the article, and Waggeman was to undertake to pay a certain sum of money in the manner therein specified. Bracken prepared this agreement, signed it, and handed it to Waggeman, who took it and made numerous and material alterations in it, but never signed it. Bracken swears he never saw the agreement after he signed it, until Waggeman produced it at the trial. Waggeman swears, when Bracken gave him the agreement, he proposed to take it, with the plans, estimates and specifications, to the architect, and have them condensed, as he terms it, into one, to which Bracken assented, and he took them to the architect. The latter delayed preparing the papers, and he procured them again, and, having made his alterations, showed them to Bracken, who, as Waggeman testifies, assented to them. During the delay, while the papers were in the hands of the architect, Bracken commenced the house, but, as Waggeman swears, became dissatisfied, from the fear that he would lose money, and after a proposition to give up the work, and some talk about that, Waggeman testifies that he went on, “with the understanding that the estimates, plans, &c., should govern.” This is the language of the witness, and it is to be observed, he does not swear that the written article was to govern, but only the estimates and plans, unless we are to conclude that the article was comprised in the “&c.” Bracken swears he was to go on and do the work for what it should be worth.

Under this evidence, we are of opinion the court did not err in refusing to let the article of agreement go to the jury. It shows upon its face that it was to be executed by both parties, and was not to bind either until executed by both. Yet it was never executed by Waggeman. There was no mutuality. If Bracken had brought suit upon this agreement, Waggeman would have successfully defended on the ground that he never executed it. Viewed even as a proposition in writing by Bracken, of the terms upon which he would do the work, and even admitting that Waggeman could have accepted it without making it mutual by executing it, which we do not admit, because inconsistent with the evident...