McDonald v. J. W. Patterson & Co.

Mb. Justice Bubboughs

delivered the opinion of the court.

The report of the master in chancery to whom this cause was referred by the Circuit Court, to take testimony and report conclusions of law and fact, and which is substantially set out in the statement preceding this opinion, gives some idea of the claims of the parties, and the facts in this case, as appears by the evidence in this voluminous record; and after a careful examination of the report and all the evidence, and the objections urged by appellant’s counsel, and also those urged by .counsel representing some of the appellees, we are satisfied, that while there are some inaccuracies in the decree, yet on the whole it does not contain prejudicial error as against the appellant, or the complaining appellees, except as to the allowance of $300 to the master as costs for his labor and time spent in stating the account between the parties, which is in excess of what the statute permits therefor; and to which we will refer hereafter.

We think that the changes made in the building. during its construction, by agreement of the owner and contractors, justified all the extra allowances above the contract price that were made to the appellees by the decree; and that their failure to use the exact material specified in the contract in most, if not all the instances in which such was used, was justified from the many agreements made between the architects and the contractors; the contractors and the superintendent of appellant employed by him outside the terms of the contract; by appellant himself, or waived by him when he saw it used without objection; or were properly ■ excused by reason of the extreme difficulty, if not impossibility, of the contractors getting just such material as the contract called for.

The evidence tends strongly to show that whenever material different from that called for by the contract was used is was good material and made good work. For much of this the decree rendered shows that the court made reasonable reductions, and to such an extent that, when ever’ffhing is considered, no hardship appears to have been imposed upon the appellant.

There was some delay in the completion of the building beyond the time named in the contract, for which the decree allows the appellant $1,500 as liquidated damages, under the provisions of the contract that $15 per day should be allowed as liquidated damages.

The appellant insists that the amount allowed is inadequate, but from all the facts and circumstances shown by the evidence, it does seem to us that it is reasonable and fair, because, whether we treat the $15 per-day as a penalty or as liquidated damages under the contract, the $1,500 •allowed seems to us, in equity and good conscience, to be a just and fair amount for the contractors to pay.

The allowance of interest to the principal contractors for the time given in the decree was proper under our statute, which allows interest on money due upon a contract in 'writing; and as the contract (in writing) between the appellant and the principal contractors inures to the benefit of "the sub-contractors, it was proper to allow them interest also.

Masters in chancery in this State, by Section 9, Chapte 90, entitled “ Master in Chancery,” are entitled to “ receive for their services such compensation as shall be allowed by "law, to be taxed as costs.” (Starr & Curtis’ Ill. Statutes (1896), Vol. 2, p. 2694.)

And by Section 20 of Chapter 53, entitled “ Fees and Salaries,” they are allowed “ for taking and reporting testimony, under order of court, the same fee as for taking ■depositions ” (fixed at 15 cents per 100 words); “ for examining questions of law and fact in issue by the pleadings, and reporting conclusions, whenever specially ordered by the court, a sum not exceeding ten dollars ($10); and no other fee or allowance whatever (except those in this act specified) shall be made for services by masters in chancery.”

“ In counties of the third class, masters in chancery may receive for examining questions in issue referred to them, and reporting conclusions thereon, such compensation as the court may deem just, and for services not enumerated above in this section, and which have been and may be imposed by statute or special order, they may receive such fee as the court may allow.” (Starr & Curtis’ Ill. Statutes (1896), p. 1915.)

- From which it appears that it is only in counties of the third class that masters in chancery are entitled to more than ten dollars for reporting their conclusions Whenever specially ordered by the court, and no more.

Vermilion county not being a county of the third class, but only of the second class (Section 13, Chapter 53, Starr & Curtis’ Ill. Statutes (1896), p. 1903), the Circuit Court committed reversible error when it allowed the master in this case $300 as costs for stating the account, when the statute only permits him to be allowed $10 therefor. (See Lee, Adm’r, etc., v. Rowley et al., 4 Ill. App. 218, and Harvey et al. v. Harvey, etc., 87 Ill. 54.)

For the error above indicated, we reverse that part of the decree allowing $300 to the master in chancery for stating the account, and reduce his allowance therefor to $10. In all other respects the decree is affirmed.

Reversed in part and affirmed in part.