| Ill. App. Ct. | Jul 18, 1901
delivered the opinion of the court.
It is contended by counsel for appellant that the work done by appellant was accepted by the appellees, and there-: fore no subsequent claim for defects in it can be successfully asserted by appellees.- To this contention we do not assent. There was no absolute and unconditional acceptance of the work by appellees. On the contrary, when the conditional, or, as it is called by the parties, “ temporary ” settlement was made the wording of the settlement very carefully guarded against any such absolute acceptance as wTould preclude a subsequent claim for defects. By the terms of that agreement of settlement “it is expressly stipulated and agreed that if defects of workmanship or material become apparent,” etc., or “ if any other work would have to be performed to make it comply with the requirements of the city,” then the appellant was to perform such additional work and make such repairs without cost to appellees. This agreement was executed under seal. A consideration for it is to be assumed. By its terms appellant engaged to do that which it refused to do, and for the cost of doing which this suit was brought. It is clear from the language of this agreement, that the parties thereto, at the time of the making of it, contemplated the possibility of defects afterward becoming apparent, and therefore avoided by the terms of the agreement any absolute acceptance of the work.
Appellant’s counsel contend also' that the court below erred in permitting items to be proved not included in the original bill of particulars, and in permitting an amended bill of particulars to be filed after the evidence was presented. We think that there was no error in this. A bill of particulars is subject to amendment. Waidner v. Pauly, 141 Ill. 442" date_filed="1892-05-12" court="Ill." case_name="Waidner v. Pauly">141 Ill. 442.
It was a matter resting within the sound discretion of the court whether the amendment should be allowed at the time it was made We can not say that the discretion was abused. An offer was extended to appellant for such postponement of the trial as would allow it to avoid any possible prejudice by surprise through such amendment.
It is contended that there is a variance in that the narr. alleges that appellees did the work which appellant should have done through the Mexican Asphalt Paving Co., while the evidence discloses that a part of it, viz., 3,222 square yards, was done by the Assyrian Company. But the fourth additional count of the declaration alleges in effect that the city forfeited the appellees’ contract as to these 3,222 yards and let that part of the work to another person, and deducted the cost of the same from the amount due to appellees by the terms of their contract with the city. We think that there is no variance.
It is also contended by counsel for appellant that the suit is improperly maintained for the use of the Mexican Asphalt Paving Co., and in this behalf it is urged that the assignment of contracts to it by appellees is ineffectual to convey any right to a part, at least, of the damages recovered. But the appellees having the legal right to the damages, and the suit being maintained in their name as nominal plaintiffs, it is a matter of no consequence to appellant for whose use they sue or recover. In no event can appellant be prejudiced thereby. Atkins v. Moore, 82 Ill. 240" date_filed="1876-06-15" court="Ill." case_name="Atkins v. Moore">82 Ill. 240.
In that case the Supreme Court said :
‘‘ The party in whom is the legal right of action may, as respects the defendant, bring his suit for the use of whatever person he likes; that it is no concern of the defendant, for whose use the action may be brought, and that it is not necessary that the one for whose use a suit may be brought, should have any interest or connection otherwise with the subject of the suit.”
In their brief first filed,' counsel for appellant did not question the extent of the recovery, except as limited by the bill of particulars, and except, perhaps, as embodied in their claim that there was a variance.- By their reply brief they question the extent of the recovery as sustained by the evidence. The substance of their contention is that while the $2,845.91 actually expended by appellees in the relaying of 8,463 square yards of street has support in the evidence, yet the allowance of more than that amount is unwarranted.
It is true that the exact amount of the cost to appellees of the relaying of the other 3,222 square yards is not established by as clear and explicit evidence as could be desired, yet, we are not willing to exclude such part of the recovery as is based upon that work. The amount paid by the city to the Assyrian Company for the entire work on the 3,222 square yards was $11,500. It is not shown what part thereof was properly chargeable for the work which should have been done by appellant, and what part was chargeable for the finishing, which should have been done by appellees, except as it is shown what the reasonable cost would be for appellant’s part of the work. But appellant presented evidence to show what that reasonable cost would be, and taking the estimates of its own witnesses we can not say that the learned trial court erred in the measurement of the damages.
We are of opinion that there was no error in denying appellant a trial by jury after its counsel had waived such right and submitted the issues to a trial by the court without a jury.
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. A proposition of law refused by the court indicates that the court excluded any allowance for interest. But we are of opinion that there was no error in so holding. Harvey v. Hamilton, 54 Ill. App. 507" date_filed="1894-05-28" court="Ill. App. Ct." case_name="Harvey v. Hamilton">54 Ill. App. 507.
In that case the evidence of experts varied from $150 to $400 per lot, and the court said:
“ With such a range in estimated values, it surely may not be said that there was at the time of the breach a well established market price, from which, without the verdict of a jury, appellant could know how much he would have to pay or was liable for.”
The language is applicable to the evidence in this case.
- Upon the whole record we are of opinion that substantial justice has been done by the judgment of the trial court, and that judgment is affirmed.