{ "id": 5385656, "name": "John F. Barney et al. v. William A. Giles", "name_abbreviation": "Barney v. Giles", "decision_date": "1887-03-22", "docket_number": "", "first_page": "154", "last_page": "160", "citations": [ { "type": "official", "cite": "120 Ill. 154" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "80 Ill. 540", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "2 S. & M. 167", "category": "reporters:state", "reporter": "S. & M.", "opinion_index": -1 }, { "cite": "1 G. & J. 324", "category": "reporters:state", "reporter": "G. & J.", "case_ids": [ 1728415 ], "opinion_index": -1, "case_paths": [ "/g-j/1/0324-01" ] }, { "cite": "58 Ill. 79", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5236508 ], "weight": 2, "pin_cites": [ { "page": "173" } ], "opinion_index": -1, "case_paths": [ "/ill/58/0079-01" ] }, { "cite": "86 Ill. 49", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2770434 ], "opinion_index": 0, "case_paths": [ "/ill/86/0049-01" ] }, { "cite": "58 Ill. 79", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5236508 ], "weight": 2, "pin_cites": [ { "page": "173" } ], "opinion_index": 0, "case_paths": [ "/ill/58/0079-01" ] } ], "analysis": { "cardinality": 513, "char_count": 12706, "ocr_confidence": 0.507, "pagerank": { "raw": 4.487994129407258e-07, "percentile": 0.9225503108482387 }, "sha256": "30981f4301fb8d86d8faf50cd99b1533daf4ebf0da44775df30679a4f28a14f6", "simhash": "1:dccd6c576c27c6e5", "word_count": 2200 }, "last_updated": "2023-07-14T19:05:50.836741+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "John F. Barney et al. v. William A. Giles." ], "opinions": [ { "text": "Per Curiam:\nThe opinion of the Appellate Court in this case, with its accompanying statement of facts, is as-follows:\n\u201cThis was a proceeding in the court below, by the defendants in error, Barney & Bodatz, under the Mechanic\u2019s Lien statute, against Giles, the plaintiff in error. The case was heard upon petition, answer, replication and proofs, and a decree passed for $1126.51, in favor of petitioners, which was declared a lien on the premises described in the petition, with the usual order of sale, upon which Giles brings error to this court.\n\u201cThe action was based upon, and for work and materials done and furnished .under, a written contract between the parties, entered into October 27, 1884, wherein said Giles, the owner of the premises, was described as the party of the first part, and said Barney & Bodatz as the parties of the second part, who \"were to furnish the materials and do the work necessary to the- mason work required in the erection and completion of a first-class fifth and sixth-story addition to the Purington block, which was to be erected on the east side of Wabash avenue, in the city of Chicago, according to plans and specifications referred to and made a part of. the agreement, which materials and work should be complete and perfect in every respect, \u2018by and at the time hereinafter mentioned, to the full and complete satisfaction of F. B. Schock, architect and superintendent, for the sum of $10.60 per thousand, (wall measurement,) to be paid at the times and in the manner hereinafter set forth.\u2019\n\u201cThe only provision as to payment by the party of the first part, is in the following clause:\n\u201cFifth\u2014That the party of the first part, in consideration of the undertakings herein contained on the part of the parties of the second part to be performed, do hereby covenant and agree to and with the parties of second part, as follows: That if the parties of the second part shall well and faithfully perform and fulfill this contract, and keep every covenant on their part herein contained, the party of the first part will pay to the parties of the second part the said sum of $10.60 per thousand, in installments, as the work progresses, upon the presentation of the architect\u2019s written certificate, who will reserve fifteen per cent of the value of the materials furnished and worked into the building, until the completion and acceptance of the contract; and upon the architect\u2019s acceptance of the work as complete and finished, the party of the first part will pay to the parties of the second part the balance in full, on the presentation of the architect\u2019s certificate certifying that the contract had been well and truly performed, and accepted by him, and that all damages or allowances which should be paid or made by the parties oC the second part, have been deducted from the amount of the said final certificate ; and also a certificate from the parties of the second part, that all claims and damages for extra work, or otherwise, under or in connection with this contract, have been presented to the architect.\n\u201cThe time fixed for completing the work was December 15, 1885, weather permitting; and in case of failure, they were to pay damages.\n\u201cThe petition was for the recovery of a balance as upon the completion of the work. It alleges the making by the architect, and the presentation by petitioners, of a final certificate to Giles, which certificate was as follows:\n\"$1079.73. Chicago, March 9, 1885.\n\u201cTo William A. Giles:\n\u201cThis is to certify that Barney & Rodatz, contractors for the mason work of your additional stories on the Purington block, are entitl\u00e9d to a payment of $1079.73, by the terms of contract.\n\u201cContract price, $-per thousand.\n\u201cExtra work, $-.\n\u201cTotal amount issued, $-.\n\u201cBalance in full, $-.\nF. R. Schock, Superintendent.\n\u201cRemarks:\u2014Work has been measured at building.\n\u201cThat upon being presented with this certificate, and the money demanded, Giles refused to pay. No other certificate is referred to in the petition, or shown in the proof, nor was any excuse alleged or shown.\n\u201cMcAllister, J.: By-the fifth clause of the agreement under which the materials were furnished and the work done, Giles agreed, that upon the architect\u2019s acceptance of the work as complete and finished, he would pay to the petitioner the balance in full, \u2018on the presentation of the architect\u2019s certificate, certifying that the contract has been well and truly performed, and accepted by him, and that all damages or allowances which should be paid or made by the parties of the second part, have been deducted from the amount of the said final certificate; and also a certificate from the parties'of the second part, that all claims and damages for extra work, or otherwise, under or in connection with the contract, have been presented to the architect. \u2019\n\u201cThe making by the architect of the one, and by the contractors of the other, of said certificates, and the presentation of them, respectively, to Giles, the owner, by or on behalf of said contractors, was a condition precedent to the right to payment for the final balance under the contract. Packard v. Van Schoick, 58 Ill. 79, and cases there cited; Coey v. Leh man, 79 id. 173; Downey v. O\u2019Donnell, 86 id. 49; Walsh v. Walsh, 11 Bradw. 199.\n\u201cThe petition does not allege, nor the proof show, that the petitioners ever made or presented to Giles any such certificate as is required by Said fifth' clause to be made and presented. Neither does the petition allege^ or the proof show,-the making and presentation of such a certificate by the architect, as is required by that clause. The one described in the petition, and given in evidence, falls substantially short of that required. Nor is there any waiver or excuse alleged or shown in respect to either of said certificates.\n\u201cThe contract being the foundation of the petitioner\u2019s proceeding, and being in all respects lawful and valid, it can be enforced only as the parties have made it. The court was powerless to dispense with the condition precedent to which we have referred.\nThe decree must, for the reasons stated, be reversed, and the cause remanded.\u2014Decree reversed.\u201d\nOn application of appellants to the Appellate Court, the order remanding the case to the Superior Court was annulled.\nIt is insisted that the Appellate Court erred in its finding that no excuse was alleged or shown in respect to either certificate required by the contract. There certainly is no such excuse alleged in the petition, and all that is claimed as being shown by the evidence, is in the testimony of Schoek, the architect, to the effect that he gave the certificate in evidence as the final certificate, on the final completion of the work; that the contractors requested him to give them a final certificate for the balance due on the contract; that there were no claims for damages made at the time, and that none had been presented to him at all, by either party. It is argued from this, that there were no claims for damages on the part of the defendant for extra work, or otherwise, on the part of the contractors, and that, therefore, no such certificates as required by the contract, could have been given. The evidence does show that no such claims were made known to the architect, but it fails to show that none such did exist. Had the architect sat down to write out a certificate as required by the contract, \u201cthat all damages or allowances which should be paid or made by the contractors have been deducted from the amount of the final certificate,\u201d he would presumably have taken pains to ascertain whether any such claim for damages existed, and if so,- have passed upon the same, and not have rested content with the mere non-presentation to him of such a claim. The defendant did, in fact, have a claim for damages, in not completing the work by the time specified, and it formed a matter of serious contest at the hearing.\nIt is urged, further, that the principle of law applied by the. Appellate Court in this case, is not the rule in equity cases, in which this proceeding is embraced, but only at common law, and that each of the cases 'cited by the court, in its opinion, except Downey v. O\u2019Donnell, 86 Ill. 49, is a suit at common law. This latter case certainly was, like the present, an equitable proceeding to enforce a mechanic\u2019s lien. The condition precedent which was not complied with there, was one as to the production of proper vouchers showing payment by the contractors to all sub-contractors and material-men, as to which the court- say: \u201cIt should have been strictly complied with, or a sufficient excuse have been shown for not complying with it, which we do not think has been done in the evidence before us.\u201d In the case of a condition precedent, we think there must be a compliance therewith, or an excuse for noncompliance shown, as well in equity as at law.\nThe criticisms made upon the opinion of the Appellate Court do not appear to us to be\u2019well founded. We are satisfied with its correctness, and the judgment of that court will accordingly be affirmed.\nJudgment 'affirmed.", "type": "majority", "author": "Per Curiam:" } ], "attorneys": [ "Mr. Eugene E. Pressing, for the appellants:", "Messrs. King & Packard, for the appellee:" ], "corrections": "", "head_matter": "John F. Barney et al. v. William A. Giles.\nFiled at Ottawa March 22, 1887.\n1. Building contract\u2014certificate of architect\u2014as a condition precedent to final payment\u2014a contract construed in that regard. A building contract provided for the retention of a certain per cent of the price to be paid, until final completion, and \u201cthat upon the architect\u2019s acceptance of the work as complete and finished, the party of the first part will pay to the parties of the second part the balance in full, on the presentation of the architect\u2019s certificate, certifying that the contract has been well and truly performed, and accepted by him, and that all damages or allowances which should be paid or made * * * have been deducted; * * * and also a certificate from the parties of the second part, that all claims and damages for extra work, or otherwise, under or in connection with this contract, have been presented to the architect.\u201d It was held, the making by the architect of the one, and by the contractors of the other, of such certificates, and the presentation of them to the owner, should be regarded a condition precedent to the right to payment for the final balance.\n2. Same\u2014sufficiency of architects certificate. On the completion of the work under such contract, the architect gave the contractors a certificate, as follows: \u201cThis is to certify that B. & B., contractors for the mason work oj: your additional stories on the P. block, are entitled to a payment of $1079.73, by the terms of contract. * * * Work has been measured at building:\u201d Held, that the certificate was not such as was required by the contract, and did not entitle the contractors to their final payment.\n3. Condition precedent\u2014rule requiring performance same in equity as at law. In the ease of a condition precedent there must be a compliance therewith, or an excuse for non-compliance shown, as well .in equity as at law.\nAppeal from the Appellate Court for the First District;\u2014 heard in that court on appeal from the Superior Court of Cook county; the Hon. George Gardner, Judge, presiding.\nMr. Eugene E. Pressing, for the appellants:\nThe principle of law applied by the Appellate Court is contrary to the rules of equity jurisprudence, and is not sustained by the decisions of this court.\nThe principle announced by the Appellate Court is not the rule in equity cases, but only at common law. The cases cited by the court in its opinion are: Packard v. Van Schoick, 58 Ill. 79, and cases there cited; Coey v. Lehman, 79 id. 173; Downey v. O\u2019Donnell, 86 id. 49; Walsh v. Walsh, 11 Bradw. 199.\nEven when the partial failure or inability to perform, results from the plaintiff\u2019s own default, the contract will still be enforced, if the relief is demanded by equitable principles, as, for example, when the plaintiff has performed substantially, but not with such exactness, in respect to all the terms, that he could maintain an action at law; or where the plaintiff has performed at or within the stipulated times, in cases in which time is not of the essence of the contract. Davis v. Hone, 2 Sch. & Lef. 341; Voorhees v. Meyer, 2 Barr, 37; Cole v. Barney, 1 G. & J. 324; McCorgill v. Brown, 2 S. & M. 167; Shaw v. Livermore, 2 Green, 338.\nMessrs. King & Packard, for the appellee:\nThe parties are bound by the agreement they have made. The contract fixes the right in which a recovery may be had, and without obtaining the requisite certificates no recovery can be had. Ely v. Ely, 80 Ill. 540; Packard v. Van Schoich, 58 id. 80; Fowler v. Deaknan, 84 id. 130; Coey v. Lehman, 79 id. 176; Downey v. O\u2019Donnell, 86 id. 49; Walsh v. Walsh, 11 Bradw. 201." }, "file_name": "0154-01", "first_page_order": 154, "last_page_order": 160 }