Kipp v. Massin

Lacey, J. After a careful review of the testimony and a full consideration of that portion of it bearing on the controverted points in issue, we think the court erred in finding the issues on those points in favor of appellee; we are satisfied that the appellants' substantially complied with their part of the agreement and would have completely performed it had it not been for the refusal of appellee to allow them to proceed. We think that the delays were caused by appellee, and that the appellants were not in fault in not completing the building within the time fixed in the contract, and hence that the appellants lost none of their rights under the contract by reason of any delays in the completion of the building. The weight of the evidence seems to be that the materials and workmanship were as good as the contract called for. The appellee may have been somewhat disappointed with the material in not fairly understanding when the contract was made just what kind of materials and workmanship was contracted for, but it appears that the specifications in the contract required to be performed by appellants were substantially complied with. The contract price was §1,451.17 and the work was all completed with the exception of a small amount of work and materials, and the appellants having been prevented from completing the building by appellee, they are entitled to recover the contract price, less the amount that it would take to complete the work, together with interest from May, 1882, the time when they were prevented by appellee from proceeding, the basis of the claim being in writing. Sanger et al. v. The City of Chicago, 65 Ill. 506. The amount allowed by the master appears to be the original amount and interest as near as we can determine, his finding not being itemized nor the basis of the calculation, as shown by the abstract. We do not think the claim for extras made out. The contract price and interest less the amount it would have required to finish the house would be the proper basis of recovery and was near the amount found by the master. We think the court erred in decreeing the costs against the appellants. The rule in regard to costs governing in chancery-cases does not apply in case of proceedings under the statute to enforce a mechanic’s lien. The matter of costs in those cases is controlled by statute. Sec. 27, Chap. 82, provides as follows: “ The costs of proceeding as between creditors claiming liens and the person against whom the lien is intended to be enforced shall abide the event of the suit, and the costs as between creditors aforesaid in contests relative to each others’ claims shall be subject to the order of the court, and the same rule shall prevail in respect to costs growing out of proceedings against and between incumbrances.” The court having found that complainants were entitled to receive $800, the costs under this statute should have been given in their favor. It shonld have abided the event of the suit; the suit having terminated in favor of appellants they should have recovered their costs from appellee. For these errors committed on the part of the court below the decree is reversed and the cause remanded. Reversed and remanded.