Young v. Wells Glass Co.

Mr. Justice Carter delivered the opinion of the court: Many imperfections in the record in this case have been pointed out, which, the appellee insists, should preclude appellant from having the benefit of the errors which he has assigned, but we prefer to rest our decision on the merits of the case as it was presented to and decided by the court below. The suit was to recover the balance of $3000 and interest claimed to be due on the contract. Appellant, or the firm of which he was a member, had, by the conveyance of the ten lots, paid $1500 of the contract price, thus leaving the balance of $3000 unpaid. The appellant, who was the only member of C. S. Young & Co. who appeared or was served, sought, by way of recoupment under the general issue, to defeat the recovery of the whole of this balance by proof that appellee failed to comply with its contract to complete the miniature building by the first of April, 1893, and that C. S. Young & Co. had by such failure sustained damages in excess of such balance. The, first question necessary to consider arises on the exception of appellant to the ruling of the court in refusing to admit in evidence before the jury the certificate or written statement of the architect purporting to fix the amount of damages sustained by C. S. Young & Co. oh account of appellee’s failure to complete the model by April 1, 1893, at $3500. Appellant’s contentiori was, and is, that the parties had by the contract made the architect the" sole arbiter of those damages and his decision final and conclusive upon both parties, and that it was serious error to exclude from the jury the written conclusion and decision of the architect on that question. Conceding, as contended by appellant, that the amount of $200 per day to be forfeited to C. S. Young & Co. by appellee for each day’s delay in completing the model after April 1, and to be deducted from the contract price, was to be considered as liquidated damages and not as penalty, the only question left for the architect to decide was the number of days’ delay to be charged up to appellee. It appeared, however, from the evidence, that the architect had based his decision on the ex parte statements of appellant as to the profits which his firm would have realized from the sale of photographs if the model had been completed by the time specified in the contract. While the contract did provide that the damages should be “determined, defined and settled” by the architect, still, as the character, nature and amount of such damages had been liquidated by the parties themselves in the contract and fixed at so much per day, the architect’s power to determine, define and settle the damages was confined to the question of the number of days for which appellee should be charged $200 per day. His own testimony shows that such was not the basis of his estimate. It appeared, also, that nearly two months prior to the making of this certificate be had accepted the model as complete and satisfactory under the contract and had issued certificates that appellee was entitled to receive $2000, and stating the balance as $1000 and ten lots, which constituted the whole of the contract price, and had made no deduction whatever for damages, as provided by the contract, and that he afterward made his estimate of damages without the knowledge of or any notice whatever to appellee. The architect was not authorized by the contract, or otherwise, to make his decision as to damages to be allowed to C. S. Young & Co. on ex parte statements of Young and without notice to appellee, and the court properly held his certificate of damages void and not admissible in evidence. In Ingraham v. Whitmore, 75 Ill. 24, this court said (p. 31): “The doctrine is well established that where an arbitrator proceeds entirely ex parte, without giving the party against whom the award is made anjr notice of the proceeding under the submission, the award is void, and it is not necessary to show corruption on the part of the arbitrator.” See, also, Vessel Owners' Towing Co. v. Taylor, 126 Ill. 250; 2 Am. & Eng. Ency. of Law, (2d ed.) 650. It is to be observed that the architect’s decision was not arrived at from the contract and matters within his own knowledge, but in part, at least, outside of the contract and from statements of one, only, of the parties. If it were held that his decision amounted only to a determination of the number of days’ delay for which appellee should pay the stipulated damages of $200 for each day, still, appellee had the right to have considered the letters which it had received from appellant and his firm, and upon which it had the right to rely, referring appellee to the Iowa commission for authority to extend the time for the completion of the model. These letters tended to prove that such delays and extensions as were satisfactory to the commission would be satisfactory to Young & Co., as Young & Co. were under contract with the commission to have the model finished and in place on the same date,—that is, on April 1. It would seem that the architect did not know of these letters, or else he ignored them. Appellee was entitled to the benefit of them. Besides, the evidence tended strongly to prove that the delay was caused by the commission itself in keeping the space allotted for the erection of the model obstructed by its own workmen. We have not thought it necessary to consider whether or not C. S. Young & Co. in obtaining, andAke architect in making and issuing, this certificate in the manner in which it was obtained and issued, exercised good faith, for that was a question for the jury, and does not, perhaps, arise here, where the court instructed the jury to find for the plaintiff. But the other questions are referred to as showing the importance of notice to appellee before the damages were fixed by the architect. There was no error in refusing to admit in evidence this void certificate of damages. The next question is, did the court err in instructing the jury to find for the plaintiff the unpaid balance of the contract price? As the evidence then stood, the jury would not have been justified in finding that there was any delay of appellee in completing its work, except such as was satisfactory to or caused or authorized by the commission, to whom it had been referred by Young & Co. as having power to extend the time. The jury were, under the evidence then before them, bound to find for the plaintiff the amount due under the contract, as there was no evidence upon which to allow any damages to the defendant. Any other verdict would necessarily have been set aside. Indeed, no error was assigned in the Appellate Court, nor has been in this court, that the amount of the verdict was excessive. The judgment of the Appellate Court affirming the judgment below is affirmed. judgment affirmed.