International Cement Co. v. Beifeld , 1896 Ill. App. LEXIS 26 ( 1896 )

Mr. Justice Waterman

delivered the opinion of the Court.

The writ in this case was sued out to reverse the action of the County Court in allowing a claim against the insolvent estate of one Clyde D. Armstrong, who made a voluntary assignment September 10, 1894.

On July 30, 1894, defendant in error made a contract with Felix & Marston for the construction of a warehouse, he taking the entire contract. On the 6th of August of the same year, defendant in error sub-let the mason work to the insolvent, Clyde D. Armstrong. Among the provisions in the contract is the limitation of the time within which, as well as the manner, the work was to be done. Section 12 provides for an involuntary termination of the contract by defendant in error under certain conditions there stated.

The insolvent proceeded with the work under this contract, and had been working thereon for a short period, when complaints were received by defendant in error, from the owners, regarding the delay in the work. The complaints continued until the architect served notice, under Section 12 of the contract, on defendant in error.

On the 6th of September, after the defendant in error received a notice from the architect, attempt was made to serve a notice to proceed with the work, upon the insolvent, but the insolvent had left the work, and the notice was served September 7th upon his foreman, who gave it to the wife of the insolvent. The insolvent, Armstrong, left the job on the 5th, and was reported to be absent from Chicago, lie was searched for by defendant in error, day after day, and not found until after the 10th of September, and after he had made an assignment.

Defendant in error then took charge of the work and completed it; filing in the County Court his claim for over $5,000, the amount which he says he expended over and above the price he was to pay Armstromg. Plaintiff in error, a creditor of the insolvent, objected to the allowance of the claim; the County Court having heard the evidence adduced by the claimant and plaintiff in error, allowed the claim for $3,272.94, that being the verdict of the jury to which the cause was submitted. Plaintiff in error, as such creditor and executor, prosecutes this writ of error.

It was made to fairly appear that the insolvent had, prior to the making of his assignment, so neglected to prosecute the work he had undertaken, if he had not abandoned it, that the defendant in error had reasonable ground for believing that it was necessary that he take possession of and complete the work; after the assignment, neither the insolvent nor his assignee exhibited any disposition to again assume to carry out the contract. The question as to whether defendant in error was justified in taking possession of and completing the work and charging the estate of Armstrong with what the completion of his contract cost in excess of the agreed price, and if so, what such excess amounted to, was submitted to the jury under instructions in which we find no sufficient warrant for reversing the judgment of the County Court.

• We do not think, Armstrong having abandoned his contract and made a voluntary assignment in insolvency, that before the defendant in error can recover damages for the default he must procure the certificate of the architect as to the amount of such damage.

Armstrong made no attempt, after his assignment, to carry out his contract; he left it with little more than half of it done; neither he nor his assignee has applied to the architect to certify as to the amount of the damage suffered, or offered to abide by the award of the architect in this regard, should one be made. There is now invoked a provision of the contract, which, until the trial in the County Court, Armstrong and his assignee disregarded, and not even then expressed a willingness to abide by.

It was not necessary that defendant in error should apply to the County Court before taking possession of the work. The assignee evidently did not desire to carry it on at the expense of the estate; indeed, it would have been folly for him to have undertaken to do so.

We find no error requiring a reversal of the order of the County Court, and it is affirmed.