168 Ill. 346 | Ill. | 1897
delivered the opinion of the court:
The Appellate Court, in disposing of this case, held the view that, inasmuch as it appeared impracticable to estimate the compensation for the part of the work performed in proportion to the price stipulated for the whole, the decree allowing Sohns a lien was wrong, as being in conflict with section 11 of the amended act of 1891, in relation to liens. (Laws of 1891, p. 161.) Section 11 of the acts provides: “When the owner of the land shall have failed to perform his part of the contract by failing to advance to the contractor moneys justly due him under the contract at the time when the same should have been paid to the contractor, or has failed to perform his part of the contract in any other manner, and by reason thereof the other party shall, without his own default, have been prevented from performing his part, he shall be entitled to a reasonable compensation for as much thereof as has been performed in proportion to the price stipulated for the whole, and,the court shall adjust his claim and allow him a lien accordingly.”
The finding of the master and of the trial court was that the reasonable value of the material furnished and labor performed by Sohns in the construction of this building was $702.54, and upon an examination of the testimony it fully warrants the finding. „ It would seem, upon every principle of equity, that claimant was entitled to that amount, being the reasonable value of the services and material furnished by him, he being prevented from completing the contract through the fault of the owner of the property. There is no dispute as to the contract price for the whole work,—$6800. In the absence of all proof to the contrary it must be presumed that that was the reasonable value of the labor and materials necessary to the performance of the contract, and therefore, when the contractor proved that he had performed a certain part of the work and furnished a certain part of the material, the reasonable value of which was $702.54, he had established his right to compensation therefor in proportion to the price stipulated for the whole. In other words, presumably the contract price for the whole work is the reasonable compensation therefor, and hence the reasonable price for a part of the work is in proportion to the price stipulated for the whole; and we think the statement in the decree of the circuit court that it appeared impracticable to estimate the compensation for the part of the work performed in proportion to the price stipulated for the whole, is not warranted by the evidence. Certainly, in the absence of all proof it cannot be presumed that the price agreed upon between the parties for the performance of the whole work was other than the reasonable price therefor. If either party desired to fix the compensation for the part of the work performed upon the theory that the contract price for the whole was more or less than the reasonable price thereof, they might have introduced evidence to that effect, and allowed the court, if it could, to fix the compensation accordingly. But having failed to do so, we are clearly of the opinion that in determining the reasonable compensation for the part of the work performed in proportion to the contract price for the whole, it must be assumed that the latter price is reasonable. Suppose the claimant in this case had introduced a witness or witnesses and proved that the reasonable compensation to him for the whole labor and material to be furnished was the contract price, $6800, and had then proved that the reasonable value of the labor and material actually furnished was $702.54; could it have been said that the reasonable compensation for the part of the work performed in proportion to the price stipulated for the whole would not have been proved? Here, presumably, the parties by their contract fixed the reasonable compensation for the whole, and it was only necessary for the claimant to prove the reasonable value of the part of the work performed. This disposition of the cause settles other points urged by counsel.
Counsel refers to certain evidence in the record, and says if we will but examine it he thinks facts will be found tending to show that this right of lien was waived and other security was intended to be taken. From the testimony abstracted we fail to find such facts, and as they are not pointed out we do not feel called upon to search through the record for evidence to support counsel’s contention.
The judgment of the Appellate Court reversing the decree of the circuit court relating to this claim is reversed and the decree of the circuit court affirmed.
Judgment reversed.
