Concord Apartment House Co. v. O'Brien
81 N.E. 1038
Ill.
1907
Check Treatment
Mr. Justice Carter

delivered the opinion of the court:

It is claimed by appellant that the contract was improperly admitted in evidence under the common counts. It is well established that where a contract has been performed and it only remains to pay the contract price for labor or property, the plaintiff may sue and recover under the common counts, and that the agreement may be read in evidence for the purpose of showing its terms and to recover damages. (Adlard v. Muldoon, 45 Ill. 193; 1 Chitty’s Pl.— 14th Am. ed.—340.) Counsel for appellant admits this proposition without question, but strongly insists that it does not apply here because in this case the contract was not fully performed. With this contention we do not agree. The proof shows that the final certificate was issued by. the appellant’s superintendent after conference between himself, appellee and Rolfe, the secretary of the company; that appellee returned the certificate to Rolfe, and that is the last he knew of it. He did not remember whether Rolfe returned it or not. Appellee testified that he made a search among his papers and cound not find it. Rolfe stated in his testimony that such a certificate was issued, and agreed with the testimony of the appellee as to the amount it showed as due. In 1898 attorney W. W. Augur, representing some of the creditors of O’Brien, called on Rolfe, at that time manager and secretary of appellant company, to ascertain the exact amount due O’Brien. Rolfe gave to Augur the following certificate:

“This is to certify that a final certificate for $4568 was issued by the Concord Apartment House Company in favor of W. D. O’Brien, August 10th, A. D. 1896.
A. A. Rolfe, Secy."

If it was error to admit this as a part of appellee’s testimony given in chief it did not in any way harm appellant, because Rolfe afterward took the stand and admitted the truth of this written statement. The certificate having been lost it was proper to prove its contents. The fact that it was lost did not change the rights or relations of the parties nor in any way affect the validity of the certificate. (Arnold v. Bournique, 144 Ill. 132.) There was proof tending to show not only the form but the substance of this lost certificate, and it seems to have been in substantial compliance with the law and the contract.

It is urged that appellee failed to complete his contract as to the automatic regulator, fusible plugs and coil of galvanized iron pipe, and that the brickwork about the boilers was not in accordance with the specifications and contract. On all of these questions there was a conflict of evidence, hence, as this court has repeatedly held, the finding of the lower court and the judgment of the Appellate Court on such questions are conclusive.

Appellee admitted that he had made slight changes from the specifications in carrying out the contract but claimed that these changes were authorized and directed by the superintendent, and that although no written order was given, under the first article of the contract the superintendent acted as agent of said owner and hence had authority to permit these alterations. After the amount due has been fixed by agreement of the parties and set out in the final certificate it would be manifest injustice to hold that the contractor could not recover because he had no written order from the superintendent for the modifications. The contract in this respect was as binding upon the superintendent, and through him upon the owner, as it was upon the contractor. Either party could waive the requirements as to written notice. On this record the appellant clearly waived any right to insist on this point.

Appellant contends that even on this state of the record, under the decision of the court in Hart v. Carsley Manf. Co. 221 Ill. 444, the contract was improperly admitted in evidence, and no recovery could be had on the common counts because all of the conditions precedent were not complied with. In this last case the final certificate was not issued as required by the contract, and this was held to be a condition precedent. Under the reasoning in that case, had the final certificate been issued a recovery could have been had under the common counts. This court held in Catholic Bishop of Chicago v. Bauer, 62 Ill. 188, that “when there has been full performance [of the contract] and nothing remains to be done but the payment of the money, or where there has been only part performance and the remainder has been waived or prevented and the work performed has been accepted, then, in either case, recovery may be had for the contract price of the service performed, under an indebitatus assumpsit.” This decision on this point has been quoted with approval by this court in Mount Hope Cemetery Ass. v. Weidenmann, 139 Ill. 67, O’Brien v. Sexton, 140 id. 517, Foster v. McKeown, 192 id. 339, and Rubens v. Hill, 213 id. 523. In Fowler v. Deakman, 84 Ill. 130, this court held that although there was a special count which did not in some respects conform to the proof, the introduction of a written statement of the architect showing why he had not given a final certificate was a sufficient excuse for not procuring the certificate, and that this statement was admissible under the common counts. In harmony on this point with the decisions just quoted are Shepard v. Mills, 173 Ill. 223, and Evans v. Howell, 211 id. 85. We do not think the decisions of Hart v. Carsley Manf. Co. supra, City of Peoria v. Construction Co. 169 Ill. 36, and Parmly v. Farrar, 169 id. 606, cited by appellant, in any way conflict with this conclusion. It was not error to admit the contract or to permit judgment to be entered under the common counts.

Appellant asked two instructions which were refused by the court. The first sets forth that the burden of proof was on the plaintiff to show that the heating plant was finished in accordance with the plans and specifications, and that if it was not so finished the plaintiff was not entitled to recover. The appellant insists that notwithstanding the granting of the final certificate the burden of proof still rested upon appellee to show that the contract was complied with, before he could recover; that under the provisions of the contract the certificate of the architect was not binding, claiming that there was nothing in the contract to show that the finding of the architect should be conclusive. On the contrary, it is contended that an appeal was allowed from his decision to the three arbitrators. We conclude from a study of the contract that this appeal to the arbitrators is only permissible as to those portions of the contract found in articles 2, 6 and 7. It is stated, in terms, that as to the provisions of article 4 the superintendent’s certificate “shall be conclusive.” Whether the appeal to the arbitrators mentioned in article 2 applies to the whole contract or not, it cannot be availed of at this late date. No objection was made for years after the completion of the contract and no attempt to dissent from the decision of the superintendent. A somewhat similar provision was found in the contract passed on in this court in Parmelee v. Hambleton, 24 Ill. 605. Under that decision we think appellant cannot now invoke this provision in the contract in this proceeding. (See, also, Pacaud v. Waite, 218 Ill. 138.) This being so, under article 9 of the contract the granting of the final certificate was “conclusive evidence of the performance of this contract,” and could be overthrown only by proof of fraud or mistake. (McAuley v. Carter, 22 Ill. 53; Korf v. Lull, 70 id. 420; Hennessy v. Metzger, 152 id. 505; Barbee v. Findlay, 221 id. 251; Lohr Bottling Co. v. Ferguson, 223 id. 88; Stose v. Heissler, 120 id. 433.) The cases of VanBuskirk v. Murden, 22 Ill. 446, and Monahan v. Fitzgerald, 164 id. 525, do not attempt to lay down a contrary rule. The defects in the work in both of those cases were held to amount to fraud. No valid claim can be made that there is any proof of fraud on this record. The only claim made as to defective work by anyone competent to testify from experience was by a witness who never saw the work until three years after it was completed. Neither the superintendent nor any one else in charge of the work when it was being executed was called to testify, and no explanation was given or attempted as to why this was not done. Most, if not all, of the defects claimed were slight. It has been held frequently that in building contracts a literal compliance with the specifications is not necessary to a recovery by the contractor. A substantial performance in good faith is sufficient. (Keeler v. Herr, 157 Ill. 57; Evans v. Howell, supra.) This instruction, which cast the burden of proving that the contract had been fully carried out upon appellee, was properly refused. The second refused instruction set forth that if, by reason of a departure from the specifications, the plant was less effective than if constructed in accordance therewith, the defendant was entitled to recoup or set off damages. This instruction was properly refused for the reasons given as to the other instruction. The certificate of the architect was conclusive unless overthrown because of fraud or mistake. Both these instructions were properly refused, also, on the ground that they ignored the explanation in the testimony by the plaintiff that some of the departures complained of were authorized by the superintendent.

Appellant also complains of the modification of the third instruction. As originally drawn this authorized a set-off for unfitness of the appliances for the purpose for which they were made, and was modified by the court by adding a provision unless the defect was occasioned by the act or interference of appellant. There is nothing in the record to indicate any fraud or mistake that would invalidate the final certificate. That instruction, therefore, whether in the modified or original form, should have been refused.

On the re-direct examination of the appellee one of the counsel for. appellant objected to one of the answers, and asked to have it stricken out on the ground that it was not responsive. The court overruled the motion. This is complained of. Such matters are entirely within the discretion of the trial court, and a case will not be reversed on such rulings unless the discretion is plainly abused.

The next question asked of the same witness was as follows: “Do you make that same statement with reference to all the changes you made in those specifications ?” One of the counsel for appellant objected to the question, but the court said the witness might answer. Thereupon associate counsel of appellant said, “I wish to state the grounds of our objection.” The court thereupon said, “I don’t care what your grounds are.” Exception was taken to this ruling. The witness answered, “I acted directly under Mr. Wheatley’s advice and instructions all through.” The question and answer were both proper, but counsel should have been permitted to state his grounds of objection. Neither he nor his associate had made clear why they objected. It is the duty of counsel always to state the ground of objection. In many instances a general objection without stating the reasons is insufficient, but we do hot think appellant was so prejudiced by this ruling of the court that this should reverse the case.

Appellant also objects to the admission of certain testimony on the re-direct examination of appellee, and especially to his answer that they “expressed themselves as perfectly satisfied.” Appellant claims that the witness did not say who expressed themselves, or when, or where or what was said. We have examined the record as to this evidence and find that the witness fully explained who were talking and what was said, and it is clearly inferable from his evidence when and where the conversation took place.

Appellant also objects to the ruling of the court in refusing to allow appellee to be asked, on cross-examination, as to the payment of a certain bill. The record discloses that the court sustained the objection to this question on the ground that it was not proper cross-examination. We think the court was right in this ruling.

The re-direct examination of appellee is also complained of. This subject was within the sound discretion of the trial court. We have read the entire re-direct examination, and do not think there was any such abuse of this discretion as to be reversible error.

We think the interest on the unpaid balance was properly allowed under section 2 of chapter 74, Hurd’s Statutes of 1905. See, also, on this point, Palmer v. Meriden Britannia Co. 188 Ill. 508; Keeler v. Herr, supra; Heiman v. Schroeder, 74 Ill. 158.

We have gone over not only the briefs and abstracts, but the record as well. We find no reversible error.

The judgment of the Appellate Court will accordingly be affirmed.

T , , , Judgment affirmed.