197 Ill. 61 | Ill. | 1902
delivered the opinion of the court:
At the close of the plaintiffs’ evidence, and again at the close of all the evidence, the defendant requested the court to hold, as a proposition of law, that the evidence adduced on the hearing of the cause was not sufficient, in law, to entitle the plaintiffs to recover and that the issues should be for the defendant, which proposition was refused by the court; and after all the evidence was introduced, appellant submitted and requested the court to hold as law eighteen other propositions, all of which, except the third, were refused. To the action of the court in refusing these propositions appellant excepted, and the rulings of the court thereon are assigned as error. Many of these propositions relate to the application of the rules of law based upon appellant’s theory of the construction of the contracts and the terms of the temporary settlement, and, so far as practicable, all will be considered together. Each contention of the appellant hereinafter referred to and discussed was based upon one or more of the propositions above mentioned, offered or asked by appellant and refused by the court, and in disposing of such contentions as made by the argument of appellant we thereby dispose of the questions arising upon the refusal of the court to hold the propositions asked.
It is contended by appellant, and the court was requested to hold, that the temporary settlement of December 18, 1895, absolved it from doing further work upon the concrete base, except the re-placing or making good any defects in the workmanship or material. We cannot agree with this contention. Its contract of September 17 provided that the material to be furnished and the labor to be performed by appellant was to be according to the contract between appellees and the city of Chicago, and this latter contract provided, “if any rejected or inferior material shall be found in the street or any portion of the work be improperly done, such work and material shall be removed and re-placed by proper work and material at the expense of the contractor,” and under the contract of December 18 it was clearly the intention of the parties, as expressed therein, that appellant should make such “alterations or repairs or perform such other or additional work as may be required by the said city authorities,” or if any other work would have to be performed on it, to make it comply with the requirements of the city authorities. It is clear that the parties understood that the work to be done by appellant was to be acceptable to the city of Chicago and that appellant’s liability continued until that work was so accepted, and when the city authorities required that the concrete base be taken up and re-laid, and appellant refused so to do, it was liable to appellees for the breach of its contract.
It is also objected that appellees, being upon the ground as the work progressed, and making no objection either as to workmanship or materials and paying for the same as the work progressed, cannot now recover for any alleged breach in that respect. The original contract between appellees and the city provided: “The right of final acceptance or condemnation of the work will not be waived at any time during its progress,”— and this provision was incorporated in the contract between appellant and appellees. Such being the express terms of the contract between the parties, we cannot hold, as a matter of law, that the acts of appellees constituted an acceptance of the work.
It is next objected that the contract sued on was not assignable so that appellees might bring action thereon for the use of the Mexican Asphalt Paving Company. It has been well settled that even though a contract is not assignable at law, a party thereto may assign his interest therein so as to vest in the assignee the equitable ownership of the assignor’s interest and the assignee may sue thereon in the name of the assignor. Schott v. Youree, 142 Ill. 233; Atkins v. Moore, 82 id. 240; American Express Co. v. Haggard, 37 id. 465; Carr v. Waugh, 28 id. 418.
It is next contended by appellant that the court erred in denying its motion for a jury trial. We regard this contention, under the circumstances, as without merit. There was an order entered by stipulation that the trial should be before the court without a jury, and the motion to set aside this order and grant a trial by jury was made after the evidence had all been heard, and after appellant had stated that it did not wish to introduce any further evidence.
It is also insisted by appellant, that even though the contract provided that it was necessary for it to perform the work satisfactorily to the commissioner of public works, the commissioner of public works, had no right, in law, to exercise any such arbitrary power, and that the appellees permitting him to tear up the work laid, without protest in the courts, by injunction or other proceeding, cannot now charge the appellant with the failure to properly perform the work. By the terms of the contract between appellant and appellees the commissioner of public works was to decide all questions as to the proper performance of the work, and there could be no acceptance of the work until the whole work was completed. This determination of the commissioner was binding upon appellant, and could only be avoided by showing that the commissioner was acting unreasonably, arbitrarily or fraudulently, and the onus of showing such facts was upon appellant. This the appellant failed to do, but, on the contrary, it appears from the evidence that the concrete base constructed by appellant was full of soft spots, the material in which could be shoveled up with a shovel or kicked up by the foot, and the record presents no question as to any unauthorized or arbitrary action on the part of the commissioner of public works, and the contention that appellees should, by injunction or other proceeding, have resisted the demand of the commissioner of public works is without force.
It is contended that the court below allowed plaintiffs to submit evidence that touched work other than that which plaintiffs made claim for, but we are of the opinion that the bills of particulars filed and the fourth count of plaintiffs’ declaration warranted the testimony that was received, and there was no variance between the allegations and the proof.
It is assigned as cross-error by appellees that the court refused to allow interest upon the amount of the damages to which they were found to be entitled. We think the trial court properly refused to allow interest. The amount of damages resulting to appellees from appellant’s breach of its contract is not so certain and definite that interest should be allowed thereon. Harvey v. Hamilton, 155 Ill. 377; 16 Am. & Eng. Ency. of Law, (2d ed.) 1014.
Finding no reversible error the judgment will be affirmed.
Judgment affirmed.