Keeler v. Clifford

62 Ill. App. 64, 1895 Ill. App. LEXIS 379

• Court: Appellate Court of Illinois
• Decided: January 22, 1896
• Status: Published

Opinion

Mr. Justice Waterman

delivered the opinion of the Court.

It is contended by appellant that the contract is so entire and unseverable in all its parts that appellee could maintain no action thereon until he had completely performed all that he was to do.

This is directly in the teeth of the agreement, which provides for payment of definite sums at three distinct periods before the completion of the entire work, viz., when one-fourth, one-half and three-fourths, respectively, of the work is done. Manifestly, such a contract is severable, and when one-fourth of the work was done appellee could have sued for and recovered $1,000. Parsons on Cont., Vol. 2, p. 517; Wharton’s Law of Covenant, Sec. 738; Evans v. The Chi. & R. I. Ry. Co., 26 Ill. 189.

Whether appellee before bringing suit had completed three-fourths of the work, as well as whether he was, by the conduct of appellant, justified in refusing to go on with the work, were questions of fact upon which we see no sufficient reason for disturbing the finding of the jury.

As to the instructions asked by appellant which the court refused to give, the first puts a construction upon the contract which is not in accordance with its terms. There is nothing in the contract requiring appellee to remove the dirt to the center line of 108th street.

If appellee had performed his part of the agreement, that is, had completed three-fourths of the work, so that he was entitled to be paid the $3,000, and if appellant failed or refused to keep his part of the agreement by paying the sum agreed to be paid when such amount of the work had been done, appellee was entitled to abandon the contract and to recover damage for a breach thereof, the amount which he would be entitled to recover being measured by the sum fixed by the contractor for doing the entire work. Evans v. Chi. & R. I. Ry. Co., 26 Ill. 189-193; Richard v. Shaw, 67 Ill. 222; Dwyer v. Duquid, 70 Ill. 307.

The second and third of such instructions were therefore properly refused.

As to the fifth, appellee might have leveled the dirt the last thing he did; he must, in order to be entitled to recover, have completed at least three-fourths of the entire work, but the contract did not require him to completely finish the work upon any portion of the land before he was entitled to be paid.

What has already been said applies to the sixth and seventh of the instructions asked by appellant.

Completing the work to the satisfaction of appellant, mentioned in the contract, -meant completing the work in accordance with the contract in such manner that appellant ought to be satisfied with the work.

His dissatisfaction, if any, must be reasonable, and can not be capricious or arbitrary.

The judgment of the Superior Court is affirmed.