Clarke v. Shirk

Mr. Justice Carter delivered the opinion of the court: The questions for determination in this case are principally questions of fact. The cause was heard in the court below mainly upon testimony given orally before the chancellor, and the decree ought not to be disturbed unless it appears that a wrong conclusion was reached. We cannot agree with appellants in their contention that the evidence shows that the appellee Shirk failed or refused to comply with the contract on his part, thereby entitling appellants to have the same rescinded. On the contrary, we think the record shows that the appellants themselves failed to comply with and carry out the provisions of the contract and lease which Dr. Clarke had undertaken to perform. By the terms of the contract the plans and specifications were to be approved by Shirk, but, after he had approved a pencil sketch of the plans submitted to him by the architect, the work was commenced before the specifications were presented to 'him and before he had any opportunity to approve them, and work was entirely suspended in January, 1892, before enough was done to call for the first payment from Shirk, under the contract, and has never since been resumed. This bill was filed in September, 1892. Appellants, as Clarke’s representatives, undertook to carry out the contract after his death, but failed to do so, and we do not think the evidence shows that such failure was brought about by the fault of Shirk. The evidence shows that just before the work was suspended on the building the architect wrote to the different contractors, directing them to suspend work until Mrs. Clarke should pay a certificate which he had issued to the contractor for the masonry, showing that he was entitled to a payment of about §10,000. True, this contractor testified that he did not stop work because this certificate was not paid, but because other contractors refused to go on, and because he could not proceed with his work independently of others. He testified, also, that he was advised by his attorney to go on with the work. The others stopped because they were ordered to do so by the architect. The appellants claim that they were willing and able to pay for the materials furnished and work done, but did not want to pay unless Shirk would signify his approval of the plans and specifications, or tell what he did want. They never did, however, pay for any of the work. There is no showing in the record of the assets of the Clarke estate. The §40,000 Clarke received for the land was nearly all consumed in paying off the mortgages, brokerage fees, etc. Mrs. Clarke stated to the witness Tharp that she could not go on and complete the building; that a sale of horses at the stock yards did not turn out nearly as much as she anticipated and that a stock of jewelry did not bring as much as she thought it would. The claims on account of this building allowed in the probate court amounted to §42,000, and not much more than the foundation and basement was conrpleted. Nothing was ever paid on these bills, either b;r Dr. Clarke or the estate. The efforts made to get other parties interested in the lease show that the-estate did not feel able to carry on the enterprise alone. Shirk declared his willingness to extend the time for finishing the building, but wanted it built according to contract, in a way that he could approve, and wanted to be certain of the financial ability and responsibility of the party that would undertake to fulfill the contract. There seems to have been but one person who was ever seriously put forward as such a party,—one Ingram, now living in Texas, but whom Shirk did not consider financially responsible, and whose statements, as preserved in the record, are, to say the least, rather inconsistent with each other and vague as to his financial standing. The principal difference between Shirk and appellants as to the plans and specifications seems to have been the contention as to the character of the inside walls of the building. As we have seen, Barfield’s' original pencil sketch showed all steel superstructure, which was accepted by Shirk. But afterward it was found that th'e north and south walls of the building, as party walls, were required to be of solid masonry by the city ordinan ces, and Dr. Clarke and Barfield accordingly changed not only these walls, but also the inside walls, to masonry, without notifying Shirk or getting his approval. To these inside walls Shirk objected as soon as he became aware of their character, and has always strenuously maintained that they must be of steel construction, objecting also to the iron work that was being put into the building, and claiming that the lease called for steel only. By the terms of the lease the building was to “be constructed of steel, briclr, terra cotta, stone and granite.” Barfield, appellants’ architect and main witness, testified that the plans and specifications were not in accordance with the terms of the lease as to the kind of building to be constructed; that the lease did require steel walls, as he understood it; that the difference in cost would have been about $1200; that brick would have been that much cheaper than steel; that it was not true that Shirk had at any time refused to approve the plans when presented to him. It seems clear to us that Shirk was not to blame for the discontinuance of the work. He at no time ordered it stopped, but insisted that he wanted the building constructed according to agreement. His letters and conduct seem to evince a desire to have the work done promptly, and to do all he could to expedite the same by examining the plans and specifications, if they were only presented to him. He wrote repeatedly about them. Appellants claim that he was chargeable with notice after having received the plans and specifications, in November. On this point there is a direct conflict of evidence, Shirk saying that he only received specifications for the masonry work, and Barfield that he had sent specifications of the cut-stone and plumbing work also. The contracts, however, had been let by Barfield before any specifications were even sent to Shirk for approval. Taking all the testimony together, we do not find that Shirk was estopped from insisting on his right of approving the specifications, and that the contention of appellants that he avoided passing upon the plans and specifications, and that he acted fraudulently and not in good faith in the matter, is not borne out by the record. " It is insisted by appellants that the trial court erred in refusing to allow them to prove by an expert contractor and builder that the lease and contract did not call for a building of steel construction. Appellants’ offer was as follows: “We now offer to prove by Mr. George A. Fuller, who is here in the court room, and who is an old resident of Chicago and a practical builder and contractor of many years’ experience, and who has probably built more of the high modern buildings than any other person in Chicago, that the ground lease and the contract involved herein do not provide for a building of steel construction.” The court properly held that it was the province of the court to construe the coutract and lease. It will be observed that the offer was, not to prove by expert testimony the meaning in the art or trade of building of technical words used in the lease and contract, so as to enable the court, in the light of such testimony, to put the proper construction upon them, but the offer was to prove by expert testimony what the proper construction of the entire contract and lease was with reference to whether the building was to be one of steel construction or not. If there was any ambiguity in the contract in the respect mentioned, the court would consider the evidence tending to prove the interpretation which the parties themselves had given the contract and lease, and the expert testimony, as offered, would not have been proper, as it would, for this reason and others apparent, have invaded the province of the court. It is apparent, we think, that the contract was a hard one for Clarke, and that upon his death his representatives were unable to carry it out, but we caunot on that account, under the bill and evidence in this case, rescind it and compel a re-conveyance of the property by Shirk, as prayed in appellants’ bill. The bill was properly dismissed for want of equity. The cross-bill was also properly dismissed without prejudice, for if appellee Shirk is entitled to a forfeiture he has a remedy at law. Equity does not look with favor upon forfeitures. Finding no error, the decree will be affirmed. Decree affirmed.