Monahan v. Fitzgerald

62 Ill. App. 192

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

Opinion

Mr. Presiding Justice Gary

delivered the opinion of the Court.

The appellants filed a bill to enforce a mechanic’s lien,alleging full performance of a contract by which they undertook to lath and plaster an apartment building, in accordance with specifications. The decree of the court dismissing the bill recites several particulars in which the appellants did not perform the contract, and concludes, “ that by reason of the non-performance of the contract, in the particulars above referred to, complainants have failed to establish a right of recovery in accordance with the averments of their bill.”

The cause had been referred to a master, who took the testimony, and found the same omissions to perform the contract as were recited in the decree, yet recommended a decree for the appellants. They did not except to the conclusions of fact of the master, and the testimony sustained such conclusions.

Where the party against whom the master reports questions the legal conclusions which the master has drawn from the facts, no exception to the report need be taken. 2 Dan. Chy. 1310.

The objection that the appellants were not, upon the facts reported, entitled to a decree, could be made by the appellee when a decree was applied for.

Now, under allegation of performance, excuse for nonperformance is not admissible. Higgins v. Lee, 16 Ill. 495.

The general question whether the appellants are entitled to any relief does not arise on this record, because there are no averments in the bill to support the case, if one be made by the evidence. Detroit Stove Works v. Koch, 30 Ill. App. 328.

The decree is therefore affirmed.