65 Ill. 492 | Ill. | 1872
delivered the opinion of the Court:
There is considerable doubt, from an examination of the testimony, whether the recovery is not for a larger amount of work than was actually performed. We make this remark to justify a reversal for other errors.
The evidence will only be alluded to for the purpose of explaining the view we shall take of some of the instructions. We shall leave the sufficiency of the performance of the work, the quality of the materials and the compliance with the contract, to be determined upon a second trial.
The first proposition of law to be noticed is, that the petition is insufficient to authorize a recovery—that the work is alleged to have been performed under a special contract, and that no time is named for its completion.
The agreement, as set out in the petition, is rather peculiar, but must be regarded as an express contract.
The substance of the allegations, as to any contract, is that the defendant employed the petitioner to do the work and furnish materials at a stipulated price, one-half to be paid on completion of the work and the residue on or before the first day of January next following; that the work was commenced and progressed with the knowledge and assent of the defendant, but as the latter hindered the work, it was not completed until in February following.
Here was a contract of employment, and the price and time of payment were fixed. It was clearly an express, as contra-distinguished from an implied, contract, but no time was agreed upon for the completion of the work. To entitle the petitioner to a lien, this was essential, and the law can not imply any time for completion, under such circumstances. This omission is fatal to the petition. Cook v. Vreeland, 21 Ill. 431.
The answer, in this case, was sworn to, and was made evidence by the statute. So far as it was responsive to the bill, it was testimony, and could only have been overcome by two witnesses, or one witness and strong corroborating circumstances. As it was competent evidence, it could only be impeached as oral testimony would be. Hence, it was error to instruct the jury to look with suspicion upon the answer, if they believed, from the evidence, that it was “recklessly made.-” It might have been reckless or careless in its statements, and yet not be false. Too much license was given to the jury by this instruction.
The fifth instruction for the petitioner was also wrong. It made the answer of no more weight than the testimony of a single witness, and, in this respect, violated a plain principle of law. The law makes a sworn answer preponderate over the testimony of one witness; and yet the court told the jury they might regard it as of no greater weight than the evidence of the defendant.
AYe do not think that the court erred in holding that .a substantial performance of the work was sufficient. Nothing more could reasonably be required.
The decree is reversed and the cause remanded, with leave to the petitioner to amend his petition if he desires.'
Decree reversed.