Neagle v. Herbert

Mr. Presiding Justice Gary delivered the opinion of the Court. The parties made a contract that the appellee would put the “ steam-heating ” into a building, and that the appellant would pay “ on the 15th day of each month as the work progresses” * * * “upon the presentation of certificates signed by ” the architect. February 18, 1893, a certificate for $2,000 was issued to the appellee, which was by him delivered to a creditor, who presented it to the appellant, who paid $1,000 upon it and no more. The appellee sued for the other $1,000, as we infer, and recovered judgment for some sum, though the abstract does not state what the verdict was, nor any judgment. As to the declaration the abstract only says “ common counts.” The only point made by the opening brief of the appellant, and therefore the only one upon which he can insist (McDonald, v. Logi, 145 Ill. 487), is, that money so claimed under a certificate can be recovered only under special pleading, and not under any common count. To sustain this position is cited Myers v. Phillips, 72 Ill. 460—a peculiar case of a contract against getting drunk, not in point here either as to facts or principles of law. In Butler v. Tucker, 24 Wend. 447, the money was claimed under an agreement under seal. The suit was covenant; could not have been assumpsit. 1 Ch. Pl. 91, Ed. 1828. Insurance cases cited are foreign to the subject; an insurance company does not owe for something it has received but for which it undertook to do if some event happened. As was said in an insurance case, mutually benevolent, “ Common counts are added, but they are useless. They are appropriate only when the defendant has received, in some form, the equivalent of the money which he is called upon to pay. When his obligation to pay rests only upon his non -performance of his promise, however good the consideration for the promise, the declaration must be special. On the other hand, however special the contract, not under seal (and under the statute perhaps if it is), if the plaintiff has performed it, and the defendant received under it the benefit for his own use, in general, some common count will suffice.” Zjednoczenie v. Sadecki, 41 Ill. App. 329; and so in 1 Ch. Pl. 303, Ed. 1828; Gottschalk v. Smith, 54 Ill. App. 341; 156 Ill. 377. Mo authority is cited, nor can any good reason be given, why a count for work, labor and services is not as applicable to the first, or an intermediate, installment, payable upon an architect’s certificate, as it would be to the last. It was never suggested that a common count for use and occupation for rent already accrued, could not be maintained until the end of the term. The judgment is affirmed.