#### Anton Waitkus, Appellee, v. Anton Olszewski, Appellant.

Gen. No. 19,736.

(Not to be reported in full.)

Appeal from the County Court of Cook county; the Hon. W. F. Slater, Judge, presiding. Heard in this court at the October term, 1913.

Affirmed.

Opinion filed October 13, 1914.

Rehearing denied October 27, 1914.

Statement of the Case.

Action by Anton Waitkus against Anton Olszewski upon the common counts to recover the value of labor and materials furnished in connection with a building owned by the defendant. Judgment was entered against the defendant, who appeals.

*323Abstract of the Decision.

1. Assumpsit, action of, § 24 * —right to recover under common counts. Where, after a part of work agreed to be done under a special" contract had been performed, there arose some difficulty out of plaintiff’s relations with a labor union because of which plaintiff was not permitted by the owner of the building to continue with the work, the plaintiff may treat the contract as rescinded and declare on the common counts and recover the value of his labor and of materials furnished.

2. Assumpsit, action of, § 71 * —when recovery cannot be based on contract price. A recovery cannot be had under the common counts for the contract price of labor and materials, but only for the actual value of the work done and the materials furnished.

3. Building and construction contracts, § 57 * —when provisions in contract as to architect’s certificate may be disregarded. Where the plaintiff may treat a special contract to furnish labor and material on a building"as rescinded because of the owner’s refusal to permit him to continue with the work, a provision in the contract for payment upon the architect’s furnishing a certificate should be disregarded.

F. P. Bradchulis and Edgar A. Jonas, for appellant; Edward J. Hess, of counsel.

Forest Garfield Smith, for appellee.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice McSurely

delivered the opinion of the court.