33 Ill. App. 48 | Ill. App. Ct. | 1889
The evidence introduced by appellee tended to show that he performed the work under the special contract which was introduced in evidence, and under the express direction and constant superintendence of the architect mentioned in the con tract, and that he was ready and willing and offered to complete the work; that he was prevented from so doing by appellant, who declared the contract forfeited and canceled. There is in the record a conflict of evidence as to the manner in which the work was done and as to delay in doing the work, and who was to blame therefor, but it is agreed on all hands that the work was not completed, and that a material portion of that called for by the contract remained to be performed, when appellant notified appellee that he would not allow him to proceed further with the job. If it be assumed that the controversy, with reference to the manner and time of performance of the work, is settled by the verdict in favor of appellee, and that the effect of the verdict is to establish that the forfeiture of the contract by appellant was wrongful, still the verdict can not stand, for the reason that the court gave to the jury an improper measure of damages. The court gave to the jury at appellee’s request, the following instruction :
“In this case if the jury find from the evidence that the plaintiff, Scanlan, was stopped or prevented by defendant from completing the work without the fault of said Scanlan, then and in such case the jury should render a verdict for plaintiff, and in assessing damages give him such sum as the material furnished, work and labor done, was reasonably worth, if such work was done' and material furnished. It is well settled in this State that when a suit is brought to recover for work done or material furnished under a special contract, the stipulations of the contract must govern as to the value of such work and materials, and the contractor can not recover upon a quantum, meruit or quantum valebant in disregard of the prices fixed by the contract, notwithstanding he may have been prevented from completing the contract by the wrongful act of the other party to the contract.” City of Chicago v. Sexton, 115 Ill. 230.
The fact that the court at the request of appellant gave to the jury an instruction stating the correct rule will not cure the error in this case, even if the jury might be left to choose which of the two different rules of damage staled to them by the court they would follow; for the reason that there is no evidence in the record on the theory of the true rule on which to base the verdict. The only evidence introduced by appellee, as to damages, is his own answer to the question, how much the work done and material furnished by him was reasonably worth—that it was worth $1,200, and he had never been paid any of it. There is no proof whatever of the value, according to the contract price, of the work and material furnished, and as the jury rendered a verdict for $1,200 it is evident that appellee’s rule of damages was adopted. It was error to admit evidence as to what the work was reasonably worth. It should be shown what the work and material furnished were worth according to the contract price. For the error pointed out the judgment will he reversed and the cause remanded.
Reversed and remanded.
