Schiml v. Edgeworth

Mr. Presiding Justice Baker

delivered the opinion of the court.

The court over the objection of the defendants admitted evidence tending to show that when the bids for the stone fronts were first taken the prices therein named were somewhat higher than the price named in the contract and higher than the defendant, Augustine J. Schiml desired to pay, and that it was then verbally agreed between him and the plaintiff that for the ornamental coping shown in the drawing mentioned in the contract a cornice molding should be substituted which brought the price down to $710; that the written contract was then drawn by Mr. Schiml and signed by him and the plaintiff and that the plaintiff omitted the ornamental coping and put on a cornice molding. In admitting this evidence we think the court erred. If the contract as written and signed did not express the agreement of the parties, the plaintiff must seek his remedy in a court of equity. As written its provisions are plain and free from ambiguity.

The court gave for the plaintiff the following instruction :

“ The court instructs the jury that if you find from the evidence in this case, and under the instructions of the court, that the building at number 4041 Calumet Avenue was built for the joint account of the defendants, A. J. Schiml and Katherine Schiml, then each of the said defendants became liable for any obligation incurred in building said building. And if you find from the evidence, and under the instructions of the court, that the plaintiff is entitled to recover herein, and if you further find that said building was built for the joint account of the defendant's, then you will find for the plaintiff a verdict against both defendants for whatever amount is shown by the evidence to be due to the plaintiff.”

There was an express contract between Augustine J.' Schiml and the plaintiff for the work in question at an agreed price and no contract between the plaintiff on the one part and Augustine J. and Katherine Schiml on the other part could therefore be implied. “ An implied contract cannot arise when there is a subsisting express contract covering the entire subject-matter.” Ford v. McVay, 55 Ill. 119-122.

The judgment of the Circuit Court will be reversed and the cause remanded.

Reversed, and remanded.