Gnuske ex rel. C. Sidney Sheppard & Co. v. Duffy

177 Ill. App. 648, 1913 Ill. App. LEXIS 1241

• Court: Appellate Court of Illinois
• Decided: March 4, 1913
• Docket: Gen. No. 17,041
• Status: Published

Opinion

Mr. Justice Barnes

delivered the opinion of the court.

Plaintiff recovered judgment for $69 for alleged completed work done under a written contract on defendant’s building. Defendant concedes that he was justly indebted to the amount of $35. The contract provided that the payments thereunder should be made upon certificates of the architect in charge of the construction.

In the absence of, facts or circumstances excusing it—and there are none in this case—the obtaining or presentation of the certificate was a condition precedent to the right to recover. International Cement Co. v. Beifeld, 173 Ill. 179. Plaintiff admits that no final certificate was demanded or issued. In view, therefore, of that fact and that the amount in excess of $35 is in dispute, the judgment can be affirmed only for such amount.

It was not error or an abuse of discretion to allow an amendment at the trial, making an additional party plaintiff, so as to conform to the proof, even though six years had elapsed since the commencement of the suit.

If plaintiff will within ten days from the filing of this opinion file in this court a remittitur of $34, the judgment will be affirmed; otherwise the judgment will be reversed and the cause remanded for a new trial.

Affirmed on remittitur.