37 Ill. App. 591 | Ill. App. Ct. | 1891
The appellees undertook to build a house for the appellant and his wife, under a written contract, which provided that it should be done to the satisfaction and under the direction of an architect named.
The appellant promised to pay the price, in certain installments, “ on certificates of ” the architect, bnt with no statement as to what the certificates should contain. The contract had this clause: “ Owner to get certificate from architect.” The price was $2,350; $2,150 was paid before suit, of which $1,175 was on certificates, and the residue without. The house seems to have been finished, and a bill, charging the appellant with the contract price and extras, delivered by the appellees to the appellant about the 17th of January, 1889, but nothing was done about a certificate from the architect until March 13th. Then he certified that he had inspected the bill in connection with the contract, and found there was due to the appellees $27.57. The finding by the court is $300. The contract conferred no authority upon the architect to determine whether any amount was due, but did authorize him to value or appraise alterations, which the appellant deemed proper and the architect adxdsed. No such alterations were ever made. From these circumstances it xvas fair to infer that the appellant, whose duty it was to procure any certificate required, intentionally refrained from so doing. He can not ground a defense upon his own neglect. In fact, he gives in his testimony as the reason why he did not pay the bill, that the appellees would not allow him for some old lumber as they promised to do. On the question of fact of how much was due, the finding beloxxq is, under the circumstances, conclusive.
There is a question of practice arising in this way: In the contract “Merseratt, Williams & Co.” are parties of the first part, bnt it is signed only “ George A. Williams.” It was produced by Williams as a witness, and he testified that he did the work under it. On cross-examination he testified: “I signed George A. Williams, instead of Merseratt, Williams & Co. I sometimes signed them one way, and sometimes the other.”
He was then asked who composed the firm, but the court held that the appellant could not make that inquiry without a denial of the partnership, by which xve understand the court meant a verified plea, denying it. If so, the court- gave a xvrong reason for a right decision. That is not error. Potter v. Gronbeck, 117 Ill. 404. Sec. 33 of the Practice Act merely shifts the burden of proof upon the defendant, to show that too many or too few persons are joined as plaintiffs, and this he may do under the general issue. Snell v. De Land, 43 Ill. 323.
But such showing is part of the defendant’s case, and can not be made on cross-examination of the plaintiff’s witness, unless he has testified in chief upon the subject. “ When a witness is called by one party, the other has only the right to cross-examine upon the facts to which he testified in chief.” Stafford v. Fargo, 35 Ill. 481.
The appellant, when he entered upon his defense, might have called Williams as his own witness, and the question would then have been competent.
There is no error, and the result is probably as nearly right as fallible judgment can reach. The judgment is affirmed.
Judgment affirmed.
