50 Ill. App. 247 | Ill. App. Ct. | 1893
Opibioh of the Court,
■ This is an action for work done under a contract for constructing the iron arch entrances, etc., of a building. The contract required the work to be done by March 15, 1892, and payment to be made within thirty days after the work ■was done, provided that the architect should certify that it had been done to his satisfaction.
The work was not finished by March 15, and June 22, 1892, the architect did certify that the entire work was finally completed May 21, 1892, but omitted any reference to his own satisfaction.
The appellant claimed damages for the delay, alleging that parts of the building could not be occupied because the entrances were obstructed. We shall not pass upon the question of damages further than to say that there is a good deal of evidence in support of the claim of the appellant.
The declaration was the common counts, in assumpsit, among which was the count for work and materials; pleas, general issue, and set-off of the damages, but the latter is too vague and general to be regarded.
The appellant’s objection that the declaration should be special, is not good. " The suit was not commenced until after the architect’s certificate was procured. Nothing further remained for the appellee to do. In such a case, the common count suffices. Fowler v. Deakman, 84 Ill. 130; Zjednoczenie v. Sadecki, 41 Ill. App. 329.
The architect’s certificate that the entire work was completed, implies that it was done as the contract required, and to the satisfaction of the architect. FTo objection appears to have been made to the form of the certificate until the case arrived here; payment was refused because, and only because, of the delay.
The completion of the work on time was not a condition precedent to the action, but damages resulting from the delay may be recouped. Spencer v. Dougherty, 23 Ill. App. 399, and cases there cited. And the recoupment needs no special plea; it is had under the general issue. Wadhams v. Swan, 109 Ill. 46.
What would be the natural consequences of obstructing the entrances to the building after March 15th, must have been obvious to the appellee, and no special notice to it of what they would be, was necessary. For them it is responsible, so far as the appellant was thereby injured.
It is for the jury to say from the evidence whether readiness for occupancy of any portion of the building was delayed by such obstructions; if it was, a fair rent of that portion during the period while readiness for occupancy was so delayed, .may be recouped.
JSTo inquiry as to what use the appellant had for the premises, is admissible, or Avhether he could or could not have rented them. Green v. Mann, 11 Ill. 613; Korf v. Lull, 70 Ill. 420; Benton v. Fay, 64 Ill. 417.
The rental value only is to be considered in estimating the damages.
The case was tried Avithout a jury, and it is not quite clear from the record why the court found for the appellee for the full contract price with interest.
Propositions of law contemplating allowance of damages for delay, Avere rejected, and one holding that the appellee was entitled to recover the whole contract price, if it had performed the work, sustained.
We may suspect that it was considered that recoupment should have been specially pleaded, but at all events it is clear that the appellant was entitled to some damages, and got none.
The judgment is therefore reversed and the cause remanded.