32 Ill. 252 | Ill. | 1863
delivered the opinion of the Court:
It is insisted that the court erred in not permitting Lightner to testify on the trial below. He was one of the corpora-tors of the company, he was one of the purchasers of the land upon which the cemetery was laid out, and for which he gave his note for one thousand dollars, for the payment of which he was still liable. He and the other purchasers were to be reimbursed their outlay from the proceeds of the sales of lots for burial purposes, after defraying the costs of improvements, and other expenses. And, after paying for the grounds and making improvements, he was to receive one-third of the profits arising from sales of the lots.
It then follows, that any liability which diminished the funds of the company would directly decrease his share of the profits. If the company were liable to the defendants in error for this labor, its payment would to that extent diminish the fund in which this witness has the right to participate. He then has an interest in the event of this suit-, to the extent of one-third of the sum involved. If the company is held liable for its payment, the fund for distribution will be diminished to that extent, otherwise it will be increased to the same extent. We are, therefore, of the opinion that this is a disqualifying interest, and there was no error in rejecting his testimony.
It is also insisted that the third instruction given for plaintiffs below was erroneous. By it the jury were informed that if plaintiffs furnished any extra materials, or performed extra labor in constructing the vault, beyond what was required by the contract, that they would be entitled to recover the worth of such materials or labor, as shown by. the evidence. This instruction does not correctly state the law. One man has no right to constitute another his debtor without his consent. This instruction implies that it may be done. It will not be contended that the workmen in this case had any right to change the plan of this vault, by enlarging its dimensions, or to change the character of the materials from the original agreement, so as to render extra materials and labor necessary, and then recover pay for them. Such a change could not be made without the consent, express or implied, of the owners. - So in erecting the vault," the builders had, under the agreement, no right to furnish extra labor or materials without the consent of the owners. They were bound to complete the building with the materials and labor as specified in the contract. This instruction should have been so qualified as to have left it to the jury to have found from the evidence that the extra labor and materials were furnished at the request of defendants below.
Again, the court erred in refusing to give defendants’ eighth instruction. It announced the rule, that a mechanic or other workman, undertaking to construct a piece of work, impliedly warrants that it shall be so constructed that it will be reasonably sufficient for the purposes for which it is intended, and if the plaintiffs agreed to build the vault, and if from defective materials furnished by them, or from unskillful workmanship it fell down and was not rebuilt, they were not entitled to recover. It is one of the plainest principles of the law, that there is an implied warranty or undertaking in all cases, that the person so acting is reasonably skillful in his profession, trade or calling. And that he will perform his engagements in his calling with that degree of skill. The law implies in all contracts, in the absence of an express agreement to the contrary, that materials agreed to be furnished shall be suitable for the purpose, and that labor shall be performed with reasonable skill. This instruction asserted this rule and was therefore improperly refused.
For these errors the judgment of the court below must be reversed and the cause remanded.
Judgment reversed.