172 Ill. 9 | Ill. | 1898
delivered the opinion of the court:
From appellant’s brief, the only questions under which it insists improper evidence was admitted, were, what was the reasonable market value of the steam engine upon the basis of the entire price for the whole contract, and other questions of like nature. By the fifth special count of appellee’s declaration it was alleged a contract was made, by which appellee was to furnish material and do certain work for appellant, and that it caused material and labor to be transported to Sanderson, Texas, for that purpose and entered on the performance of the work, but appellant prevented its complete performance, by reason of which, materials so transported for that purpose were lost to appellee. If a contract was made as alleged and damage sustained as alleged, the plaintiff had a right to show the value of the material so transported to Sander-son, and its damage. It was .not error to overrule appellant’s objection to the above question and questions of a similar character, neither was it error to refuse to exclude such evidence from the jury.
Appellant urges that under the count in quantum meruit no recovery could be had, because where a.party fails to comply with an agreement where there is a condition precedent to be by him performed, no recovery can be had where he is the one in default. Whilst such is the rule, and no recovery can be had under a quantum meruit except where the material or work is of benefit to the other party or accepted or used, or except where nothing remains to be done except the acceptance and payment, still, under the fifth special count, if the appellee transported materials and labor to Sanderson to perform the work, and though not in default was prevented from performance by the appellant, a recovery could be had. Whether the facts were sufficient to authorize a recovery, or whether the damage assessed by the jury was excessive, were questions of fact settled by the trial and Appellate Courts, and such findings are binding on this court.
The court refused to give an instruction to the jury, as follows:
■ “The plaintiff cannot recover on the quantum meruit for work done or material furnished at Sanderson well, because there was nothing done which the defendant accepted or used or which was of benefit to the defendant.”
This instruction was calculated to mislead the jury, as a recovery might be had for work done or materials furnished at the Sanderson well if the fifth special count was proven as alleged, and hence it was not error to refuse it.
There were four wells on which work was done and materials furnished under the several contracts specially pleaded. As to the work and material furnished on three of those wells, as alleg'ed in the first, second, third and fourth special counts, the defense was that they had been paid for in cash, and by deductions assented to by appellee in settlement of a controversy. Whether such settlement was assented to was an issue sharply controverted at the trial. It is not a question to be determined here.
The judgment of the Appellate Court for the First District is affirmed. T 7 , „. 7 Judgment affirmed.
