Mr. Justice Magruder
delivered the opinion of the court:
In this case the evidence shows that the labor and material, for the price of which this suit is brought, were furnished by the appellees; and the defense of the appellant rests upon substantially two grounds. The first ground of defense is, that there can be no recovery, because the certificate of the architect was not produced, as required by the contract, and because the certificate was not shown to have been withheld fraudulently, or by reason of fraud on the part of the architect. The second ground of defense is, that there can be no recovery, because the damages, alleged to have been sustained by the appellant by reason of defective material and delay in completing the work, exceeded the amount claimed by appellees. That is to.say, according to the claims of appellant, the appellees were continuously in default from September 29, 1892, until February 15, 1893, a period of 139 days, and the liquidated damages for the delay, at the rate of $50.00 a day for 139 days, would amount to $6950.00, which exceeds the sum of $6408.63, claimed by the appellees to have been due them. The main contention of the appellees in regard to the delay was, that they were delayed in the performance of the contract by the fault of other contractors. The objections made by appellant,' which range themselves under, and bear upon, the general defenses above stated, will be considered in their order.
First—Appellant contends that the court below erred in the admission and exclusion of evidence.
It is said that the court erred in permitting appellees to prove, that the interest on the claim against appellant from December 15, 1892, up to the date of the trial amounted to $3407.00. It is claimed that there is no evidence, showing the completion of the work on December 15, 1892. We have examined the testimony, and find that there was evidence, consisting of the testimony of several witnesses introduced by the appellees, showing that the work was completed about the middle of December, 1892. It is true that testimony, introduced by the appellant, tended to show that the work was not completed until February 15, 1893, but the court, under its instructions, properly submitted the evidence to the jury upon this question, and it was for them to determine which was the correct date of the completion of the work. It is also insisted that the court erred in allowing this testimony in regard to interest, upon the alleged ground that the appellees did not make out a case of vexatious and unreasonable delay of payment. It is undoubtedly true that, in order to justify a recovery of interest, the claim must be liquidated, and it must be shown that the parties figured upon a definite amount as being due, and that payment has been vexatiously and unreasonably withheld. (Haight v. McVeagh, 69 Ill. 624; Imperial Hotel Co. v. Claflin Co. 175 id. 119.)
There was evidence, introduced by the appellees, tending to show that appellee, Kent, after January 18, 1893, went to the office of the architect, Warren, and submitted the account, which was checked up, and the sum of $6000.00 was agreed upon as being due appellees, and that a certificate of that amount was made out under the direction of the architect, Kent consenting to throw off the $408.63 rather than have any quarrel or dispute. The evidence tends further to show that the architect put off the payment of the amount, thus agreed to be due, at one time by asking that it be allowed to rest for a day or two until the architect could see appellant; at another time, several weeks thereafter, when Kent demanded the certificate, the architect said that he had had a talk with the appellant, and asked that it be allowed to rest a while longer as appellant was pressed for money; again, after the lapse of several weeks, Kent was told by the architect that appellant had instructed him not to give appellees a certificate; and the architect told Kent that he had better see the appellant, and have a talk with him, and fix it up; Kent thereupon went to see Fitzgerald, who told him to go to the architect, saying: “You get a certificate from the architect, and I will pay it;” when Kent went back to the architect, he was informed by him again that Fitzgerald had told him (the architect) not to give the certificate. When Kent returned to the architect after the fourth or fifth visit, the latter told him that he was entitled to his money, but that he would have to see Fitzgerald, the owner of the building, who had given him an order not to issue the certificate ; thereupon, on seeing Fitzgerald, he was again told by the latter, “You get a certificate and I will pay it;” and thereafter, when Kent attempted again to see the architect, he found that the office of the latter was closed, and he had left for Europe. This evidence tended to show a vexatious and unreasonable delay of payment, and therefore justified the introduction of testimony in regard to the amount of interest. Independently, however, of any other consideration, it sufficiently appears that the jury did not allow the appellees any interest, and, therefore, the introduction of the testimony in question could not have done the appellant any harm. If the sum of $3407.00 had been allowed for interest, the verdict would have been $9407.00. As, however, the verdict was only for the sum of $6000.00, being the amount of principal agreed upon by the parties, it is clear that there was no allowance of interest.
The court is said to have erred in permitting a witness for the appellees, named Anderson, to state what he said over the telephone at a certain time. Anderson appears to have been a sub-contractor under appellees, who was to furnish certain of the iron work. He was put upon the stand for the purpose of showing that the delay in the putting up of the iron work was the fault of appellant. Anderson states, that he was at the building from the 5th to the 30th of September almost every day, but was unable to go ahead, stating that the iron was lying all around the street, and they were kicking about it blocking up the street. He then makes the following statement: “I asked every day, telephoned every day, ‘Can’t I start?’ because I had a gang idle.” The objection is, that this was a conversation by telephone between Anderson and appellees, at which the appellant was not present, and that, therefore, the evidence was mere hearsay and should have been excluded by the court. The only language, shown to have been used over the telephone, are the words “Can’t I start?” These words were a mere exclamation, which constituted a part of the res gestee, as being calculated to illustrate or picture the condition of affairs then existing at the building. It tended to show the reason why appellees could not go ahead with the work. The words were not the narration or history of a past event, but threw light upon the reason why it was impossible to proceed with the work. In Maher v. City of Chicago, 38 Ill. 266, where certain city officials made statements during the prosecution of work for a corporation to persons engaged on the work, it was said (p. 273) : “Counsel for the city contend that the statements of the city officials were improperly received as evidence. These statements were made at the commencement and during the progress of the work to persons engaged upon it, and are admissible as showing the manner and circumstances, under which it was begun and prosecuted. They are part of the res gestee.” In Kyner v. Boll, 182 Ill. 171, it was said (p.
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Mr. Justice Magruder
delivered the opinion of the court:
In this case the evidence shows that the labor and material, for the price of which this suit is brought, were furnished by the appellees; and the defense of the appellant rests upon substantially two grounds. The first ground of defense is, that there can be no recovery, because the certificate of the architect was not produced, as required by the contract, and because the certificate was not shown to have been withheld fraudulently, or by reason of fraud on the part of the architect. The second ground of defense is, that there can be no recovery, because the damages, alleged to have been sustained by the appellant by reason of defective material and delay in completing the work, exceeded the amount claimed by appellees. That is to.say, according to the claims of appellant, the appellees were continuously in default from September 29, 1892, until February 15, 1893, a period of 139 days, and the liquidated damages for the delay, at the rate of $50.00 a day for 139 days, would amount to $6950.00, which exceeds the sum of $6408.63, claimed by the appellees to have been due them. The main contention of the appellees in regard to the delay was, that they were delayed in the performance of the contract by the fault of other contractors. The objections made by appellant,' which range themselves under, and bear upon, the general defenses above stated, will be considered in their order.
First—Appellant contends that the court below erred in the admission and exclusion of evidence.
It is said that the court erred in permitting appellees to prove, that the interest on the claim against appellant from December 15, 1892, up to the date of the trial amounted to $3407.00. It is claimed that there is no evidence, showing the completion of the work on December 15, 1892. We have examined the testimony, and find that there was evidence, consisting of the testimony of several witnesses introduced by the appellees, showing that the work was completed about the middle of December, 1892. It is true that testimony, introduced by the appellant, tended to show that the work was not completed until February 15, 1893, but the court, under its instructions, properly submitted the evidence to the jury upon this question, and it was for them to determine which was the correct date of the completion of the work. It is also insisted that the court erred in allowing this testimony in regard to interest, upon the alleged ground that the appellees did not make out a case of vexatious and unreasonable delay of payment. It is undoubtedly true that, in order to justify a recovery of interest, the claim must be liquidated, and it must be shown that the parties figured upon a definite amount as being due, and that payment has been vexatiously and unreasonably withheld. (Haight v. McVeagh, 69 Ill. 624; Imperial Hotel Co. v. Claflin Co. 175 id. 119.)
There was evidence, introduced by the appellees, tending to show that appellee, Kent, after January 18, 1893, went to the office of the architect, Warren, and submitted the account, which was checked up, and the sum of $6000.00 was agreed upon as being due appellees, and that a certificate of that amount was made out under the direction of the architect, Kent consenting to throw off the $408.63 rather than have any quarrel or dispute. The evidence tends further to show that the architect put off the payment of the amount, thus agreed to be due, at one time by asking that it be allowed to rest for a day or two until the architect could see appellant; at another time, several weeks thereafter, when Kent demanded the certificate, the architect said that he had had a talk with the appellant, and asked that it be allowed to rest a while longer as appellant was pressed for money; again, after the lapse of several weeks, Kent was told by the architect that appellant had instructed him not to give appellees a certificate; and the architect told Kent that he had better see the appellant, and have a talk with him, and fix it up; Kent thereupon went to see Fitzgerald, who told him to go to the architect, saying: “You get a certificate from the architect, and I will pay it;” when Kent went back to the architect, he was informed by him again that Fitzgerald had told him (the architect) not to give the certificate. When Kent returned to the architect after the fourth or fifth visit, the latter told him that he was entitled to his money, but that he would have to see Fitzgerald, the owner of the building, who had given him an order not to issue the certificate ; thereupon, on seeing Fitzgerald, he was again told by the latter, “You get a certificate and I will pay it;” and thereafter, when Kent attempted again to see the architect, he found that the office of the latter was closed, and he had left for Europe. This evidence tended to show a vexatious and unreasonable delay of payment, and therefore justified the introduction of testimony in regard to the amount of interest. Independently, however, of any other consideration, it sufficiently appears that the jury did not allow the appellees any interest, and, therefore, the introduction of the testimony in question could not have done the appellant any harm. If the sum of $3407.00 had been allowed for interest, the verdict would have been $9407.00. As, however, the verdict was only for the sum of $6000.00, being the amount of principal agreed upon by the parties, it is clear that there was no allowance of interest.
The court is said to have erred in permitting a witness for the appellees, named Anderson, to state what he said over the telephone at a certain time. Anderson appears to have been a sub-contractor under appellees, who was to furnish certain of the iron work. He was put upon the stand for the purpose of showing that the delay in the putting up of the iron work was the fault of appellant. Anderson states, that he was at the building from the 5th to the 30th of September almost every day, but was unable to go ahead, stating that the iron was lying all around the street, and they were kicking about it blocking up the street. He then makes the following statement: “I asked every day, telephoned every day, ‘Can’t I start?’ because I had a gang idle.” The objection is, that this was a conversation by telephone between Anderson and appellees, at which the appellant was not present, and that, therefore, the evidence was mere hearsay and should have been excluded by the court. The only language, shown to have been used over the telephone, are the words “Can’t I start?” These words were a mere exclamation, which constituted a part of the res gestee, as being calculated to illustrate or picture the condition of affairs then existing at the building. It tended to show the reason why appellees could not go ahead with the work. The words were not the narration or history of a past event, but threw light upon the reason why it was impossible to proceed with the work. In Maher v. City of Chicago, 38 Ill. 266, where certain city officials made statements during the prosecution of work for a corporation to persons engaged on the work, it was said (p. 273) : “Counsel for the city contend that the statements of the city officials were improperly received as evidence. These statements were made at the commencement and during the progress of the work to persons engaged upon it, and are admissible as showing the manner and circumstances, under which it was begun and prosecuted. They are part of the res gestee.” In Kyner v. Boll, 182 Ill. 171, it was said (p. 186) : “It is a well settled principle in the law of evidence, that, whenever it becomes important to show, upon the trial of a cause, the occurrence of any fact or event, it is competent and proper to also show any accompanying act, declaration or exclamation, which relates to or is explanatory of such fact or event. Such acts, declarations or exclamations are known to the law as res gestee.” (Lander v. People, 104 Ill. 248).
It is furthermore objected that the court permitted plaintiffs to prove the time when the work was completed by entries, made in a private memorandum book. When the witness, Anderson, was upon the stand, he was questioned as to the time when the work was completed. He stated, independently of any memorandum book, that the work was completed about the middle of December, 1892. He then made use of the memorandum book merely for the purpose of refreshing his recollection; and counsel for appellant drew from the witness upon cross-examination, that the witness remembered the date, because he had entered it in his book. The attention of the witness was called by counsel for appellant to the book, which the witness had kept as the work progressed. A part of the delay in the progress of the work was not only attributed to the slowness of other contractors, such as the masons and carpenters, but also to the condition of the weather. Anderson had minuted in his book the days upon which, during the progress of the work, it had rained, and, upon cross-examination, counsel for appellant asked him to look over his book, and tell how many days it rained during September and October, 1892. After this cross-examination, the witness was asked by counsel for appellees to give the condition of the weather between certain dates in December, 1892. It was to this question that counsel for appellant objected, which objection was overruled. We concur with the Appellate Court when they say in their opinion: “We do not think that there is any merit under these circumstances in the contention of appellant in regard to this book.” The book itself was not introduced in evidence, and it appeared that the entries therein were made by the witness at the time of the events spoken of by him, and in the course of his duty, as an employe of appellees, in and about the particular business in controversy. In Lawrence v. Stiles, 16 Ill. App. 489, it was said: “It is well known that memoranda and entries made at or about the time of the transactions to which they relate, in the regular and usual course of business and of the employment and duty of the person who made them, have long been admitted as part of the res gestee
It is furthermore objected that the appellee, Kent, when a witness upon the stand, was permitted to use the expression, “he kept putting me off.” A motion was made to strike out this expression, and was refused by the court, to which exception was taken. Counsel for appellant say that, in the use of these words, the witness was stating a conclusion only, and not a fact. We think that, under the circumstances above detailed, it was a statement by the witness of a fact; but whether this be so or not, the expression was harmless, for all the conversations between appellees and the appellant and the architect, relating to the- payment of the amount in controversy, were fully and particularly given in the testimony. Where the actual and specific language of all parties is fully given, there can be no prejudice or harmful effect if the witness does state a conclusion. (Sokel v. People, 212 Ill. 238.) It is insisted that the court erred in refusing to permit Kearns, the assistant of the architect and superintendent of the work under the architect, to state what he said to Warren at the time certain letters were written to appellees, calling attention to the defects in certain columns put up by appellees. After an examination of the record, we are satisfied that the witness, Kearns, did state all that was said in reference to the columns. He says he told the architect the columns were imperfectly cast, etc. It is also said that, when the witness, Kent, stated that he had been informed that the architect had gone to Europe, appellant’s counsel was not permitted to cross-examine him as to the persons, from whom he had obtained such information. The record shows that he was allowed to give at least the names of three persons, who had so informed him, and, when he had given such names, it was not error on the part of the court to refuse to permit counsel to proceed further upon that subject.
Second—Instruction, numbered 17, given for the appellees, set forth in the statement preceding this opinion, is objected to upon the alleged'ground that it assumes, as a fact, that appellant directed the architect to withhold and not deliver the final certificate to the appellees. The instruction is not justly subject to the criticism made upon it. The part of the instruction, which is said to contain the assumption complained of, is preceded by the words: “If you further believe from the evidence,” etc., and is followed by the words, “if shown by all the evidence in this case.” The jury were thus told to find from the evidence whether or not the architect refused to deliver the certificate, and were not directed to assume the non-delivery of such certificate as a fact. (Shannon v. Swanson, 208 Ill. 52; Chicago City Railway Co. v. O’Donnell, 208 id. 267; Smith v. Henline, 174 id. 184; Illinois Terminal Railroad Co. v. Thompson, 210 id. 226; Gerke v. Rancher, 158 id. 375). In addition to this, in instruction, numbered 12 and other instructions given for appellant, the jury were told that the burden of proving the refusal to issue a final certificate was upon the appellees, and that appellees must prove such refusal by a preponderance of the evidence. In one instruction they were told: “If you believe from the evidence in this case that the plaintiffs have failed to prove by the preponderance or greater weight of the evidence that the architect, Clinton J. Warren, fraudulently and in collusion with the defendant Fitzgerald, refused to issue a final certificate to the plaintiffs, then your verdict should be for the defendant.” Instruction, numbered 17, is also objected to upon the ground that it told the jury that, if the plaintiffs completed the work in accordance with the terms of the contract, then they could recover without any reference to the fraud of the architect, it being the contention of the appellant that the contract makes the architect the final arbiter of all disputes between the parties, so that his decision is conclusive, and no recovery could' be had without showing fraud on his part. Whether or not the contract between the parties made Warren, the architect, arbitrator of all disputes and questions of payment of money due under the contract, is a question which we do not deem it necessary to decide, because, even if appellant’s contention upon this subject is correct, at least four instructions, given for the appellant, announced the construction of the contract contended for. For instance, instruction numbered 10, given for the appellant—after presenting to the jury the questions whether or not appellees completed the work in accordance with their contract, and whether or not a' dispute arose as to such completion, and whether or not the architect in good faith decided that appellees had failed to complete the contract within the time specified, so that there was no money due from appellant to appellees for the work—told the jury “that it makes no difference whether said Clinton J. Warren decided said disputes correctly or not; because, under the contract offered in evidence in this case, both parties herein agreed that the decision of said architect, when honestly made, should be final and binding upon the parties hereto. What the facts are you must determine from the evidence.”
Instruction, numbered 17, is further criticised upon the alleged ground that it ignores the defense of the appellant, which defense is that the liquidated damages for the appellant amounted to more than the entire claim of the appellees, computed at the rate of $50.00 a day for the total period of delay. On this point counsel for the appellant say: “The appellees were in default from September 29, 1892, until February 15, 1893,. being a delay in all of one hundred and thirty-nine days, and the liquidated damages for the delays under the terms of the contract amounted to $6950.00. Now, the total amount of the appellees’ claim was only $6408.63, so if the testimony of the defendants’ witnesses was true, even if the contract was completed in accordance with the terms thereof, there was nothing due to the appellees.” The instruction was not erroneous in omitting the question of damages by way of set-off, as it is not always necessary to negative mere matter of defense. The instruction does not assume to enumerate all, or any of, the elements, essential to a recovery by the appellees. It simply relates to the question of excuse for the non-production of the architect’s certificate. (Illinois Central Railroad Co. v. Smith, 208 Ill. 608). An instruction, containing all the elements necessary to a recovery upon the plaintiffs’ theory, is sufficient without negativing defensive matter or theories. (Chicago Union Traction Co. v. Leach, 215 Ill. 184; Mt. Olive Coal Co. v. Rademacher, 190 id. 538.) The plaintiff is only obliged to present the law correctly in his instructions applicable to his theory of the case, and is not bound in every instruction to anticipate and exclude every possible defense. It is not necessary in an instruction to negative matter of mere defense. (City of Chicago v. Lonergan, 196 Ill. 518). Moreover, instruction, numbered 15 given for the appellant, informed the jury that a certain time was fixed in the contract for the completion of the iron work by the appellees, and it was stated therein that, if the appellees failed to complete the iron work within the time specified, the appellees would be liable for the sum of $50.00 per day liquidated damages for each and every day the iron work remained unfinished after the time therein specified. Instruction, numbered 14 given for the appellant, told the jury that, if they found the amount of damages, so sustained by the appellant by reason of the failure of plaintiffs to perform the work within the contract time exceeded the amount claimed by appellees, they were to find the issues for the defendant.
Objection is also made to instruction numbered 18, as set forth in the statement preceding this opinion. This instruction is said to be erroneous upon the alleged ground that it told the jury that, if the architect refused to deliver to the appellees a final certificate “in bad faith and without just cause,” appellees were entitled to recover. The instruction is charged with being defective, as not stating to the jury what facts constituted “bad faith and without just cause.” We think the instruction, taken as a whole, clearly informed the jury what facts, under the circumstances of this case, would amount to bad faith and the absence of just cause. If the architect inspected the work and accepted it as being in compliance with the contract, and then refused to deliver the certificate, he was guilty of bad faith. Objection is also made to instruction 19, given for the appellees and set forth in the statement preceding this opinion. What has already been said in regard to the subject of interest answers the objection, made to this instruction. The evidence tended to show an unreasonable and vexatious delay of payment, and it was for the jury to say whether that delay was occasioned by the fault of the appellant. The delay of the architect was the delay of the appellant, as the architect was to a certain extent the agent of the appellant, and, according to the testimony of the appellees, acted under the instructions of the appellant in refusing to deliver the certificate. The instruction is not justly subject to the criticism, that it leaves the jury to estimate the amount of damages according to their own individual notions of right and wrong, because it specifically refers them to the evidence under the instructions of the court. (Springfield Consolidated Railway Co. v. Puntenney, 200 Ill. 9).
It is also said that instruction No. 16, given for the appellees, as set forth in the statement preceding this opinion, is erroneous, because it told the jury “that the facts must be decided by the jury from the testimony, which is received in open court.” The word, “testimony,” is said to signify oral evidence only, and therefore excluded from the consideration of the jury the documentary evidence. Even if such be the correct meaning of the word “testimony,” it could not have misled the jury in the present case, for the reason that the concluding sentence of the instruction directs the jury to “not consider anything but the evidence introduced before them, and the law as laid down in the instructions of this court.” It is admitted that the word, “evidence,” is broad enough to include the documentary, as well as the oral evidence.
Third—It is next urged by counsel for appellant, that improper remarks were made by the court, and by counsel for appellees, in the presence of the jury to the prejudice of the appellant.
Certain letters were introduced in evidence by the appellant, purporting to have been written by the architect to appellees, complaining of the delay in the progress of the work. The • letters thus introduced were stated by the architect, when he was upon the stand as a witness, to be the only letters or documents in his possession. Subsequently, a letter was produced, written by the appellees to the architect, and it was stated, on the part of the appellant, that such letter was in the possession of the architect when he had previously testified. It appears that.the architect was not within reach after he had given his testimony, and after the omitted letter had thus been introduced. It is said by counsel for appellant that the court intimated to the jury that the architect, Warren, had willfully suppressed a letter that was in his possession while on the stand. In reference to this letter the court asked: “Was this in his possession when he was on the stand?” to which counsel for appellant answered, “Yes;” the court then said, “I would like to have him here.” The remark of the court can only be construed to have meant that he would like to have the architect,' Warren, present in court to explain his previous statement, that he had produced all the letters in his possession, when subsequently one was introduced, which was admitted to have been in his possession when he testified, but not then referred to. The remark of the court cannot be construed as a charge that the architect had willfully suppressed a letter in his possession, but merely expressed a desire to have him make an explanation in regard to the matter. We are not satisfied that any harm was done to appellant by this remark of the court, although such remark might well have been omitted.
The witness, Anderson, had testified, contradicting the appellant’s witness that the work in question was completed in December, 1892, and also telling of the many days of bad weather, which he claimed to have made a minute of in a private memorandum book. Upon the cross-examination of the witness in regard to this matter by counsel for appellant, the following occurred :
“Q. Did you vote at the election in the year 1892? In the fall of 1892, in November? (Objection by plaintiff).
The court: “We will rule out politics in this case.
Mr. Tone: “It has something to do with the memory.
The court: “If he isn’t right you can bring in the weather bureau man. (To which statement of the court the defendant by his counsel then and there duly excepted).
A. “I haven’t got marked down whether I voted at the election in 1892 or not.”
The remark of the court, which is objected to, is the fol- ■ lowing: “If he isn’t right, you can bring in the weather bureau man.” Counsel on cross-examination had asked witness numerous questions in regard to the condition of the weather during the progress of the work, and had been allowed wide latitude in such cross-examination as to the weather. The question, whether or not the witness voted at the election in 1892 was improper and immaterial, and the remark of the court merely prevented further examination in this improper and immaterial vein. We cannot see that any harm could have been done to the appellant by the remark of the court, inasmuch as a further continuation of the cross-examination in regard to the weather was wholly unnecessary, enough already having been drawn out upon that subject.
Some other objections are made to the action of the court and to the remarks of counsel, but after a careful examination of them, we are of the opinion that they are not of sufficient importance to justify us in reversing the present judgment. The trial as a whole seems to have been conducted fairly, so far as the court was concerned.
The judgment of the Appellate Court, affirming the judgment of the circuit court, is affirmed.
Judgment affirmed.