W.H. Stubbings Co. v. World's Columbian Exposition Co.

Mr. Presiding Justice Freeman delivered the opinion of the court. FTumerous alleged errors are complained of by appellant’s counsel which relate to rulings of the trial court upon the admission of evidence, instructions given in favor of appellee and denying a motion for a new trial. It is insisted that the judgment is contrary to the weight of the evidence and to the law. It is claimed in behalf of appellee that when the work was completed, appellant applied for final certificates as contemplated, by the contracts, and presented to the assistant chief of construction all of the claims involved in this suit, which were fully considered between the parties; that there had been a change in the plans of the Manufactures Building which caused a very material reduction in the amount of work as originally contemplated by that contract, amounting, it is said, to $10,320.58; and that upon consideration of the claims of appellee for a deduction of this sum from the original contract price, and of the claim of appellant for extra work and damages amounting to about $11,198.90, a compromise and settlement were effected by virtue of which appellee allowed and paid, and appellant accepted the full original contract price, without any reduction for the work not done; and that this was accepted by appellant as a settlement in full of the demands under that contract, to recover which this suit is brought. It is claimed by appellee, therefore, that the final certificate or voucher then paid by appellee was in satisfaction of all claims and demands between the parties, and a bar to future actions by either party, upon these unliquidated demands. On the other hand, appellant’s claim is that the changes in the Manufactures Building, instead of causing a reduction in the amount of work originally contemplated by the contract, compelled appellant to perform work and furnish material to the extent of $2,485 more than was called for by the original contract, plans and specifications. This is a question of fact upon which evidence is conflicting. 'It may be said, however, that the voucher and receipt introduced in evidence refer by their terms to the contract, and do not purport to be in settlement of anything but the written contract. Appellant’s claims, as stated, arrange themselves in two general classes, and it will not be necessary in the view w-e take of the controversy to consider in detail the items for which recovery is sought. The first class includes claims for extra labor and material not embraced in the contract specifications, but afterward ordered by appellee’s agents in charge of the work; and the second, claims for damages caused mainly by advance in wages, which would not have affected appellant, except by reason of appellee’s failure to nave the buildings ready for appellant to proceed with its work before the expiration of the time provided for its completion in the written contracts. Under the first of these heads comes the claim for priming on the interior of the Manufactures Building. The contract with appellant for that building called only for work to be done on the exterior. It is, however, claimed by appellant that it put one coat of paint upon the interior pursuant to an oral request made by Mr. Graham, the assistant director of works and assistant chief of construction, who had been put in charge of the buildings and gangs employed thereon, by a written order of his chief, Mr. Burnham, the director of works and chief of construction. The trial court excluded evidence offered to prove this alleged oral contract and what was. said with reference thereto between the parties, as well as testimony tending to prove that appellant had not been paid for that work. The same ruling was applied when appellant sought to show what agreement was made by the assistant chief about payment for a lot of broken glass replaced by appellant; and it is contended that this testimony was competent and should have been admitted. The court’s ruling excluding this evidence is sought to be justified by appellee’s attorneys on the ground that evidence tending to show oral orders given or agreements made was properly excluded because the parties who gave them were not shown to have had authority to 'make any such new contract and bind appellee. There seems, however, to be no dispute that appellant did put this coat of paint on the interior of the building, and did replace a quantity of broken glass. Prior to the informal opening day, appellant was directed to have all the glass set in the Manufactures Building This was done. On that day the building was occupied by thousands of people, and a large quantity of the glass appears to have been broken. Appellant resumed work the next day and it is said was directed to, and did, replace this broken glass. It appears that Mr. .Graham was assistant director of works, and was, by written order from Mr. Burnham, who was the director of works for appellee, instructed to “assume charge of all buildings and gangs employed on the same,” and it was ordered that “ superintendents in this service will report directly to him.” It is conceded that Graham was thereafter on the grounds of the defendant company supervising the work and superintending the construction of the buildings, apparently acting with full authority of and from Mr. Burnham, his chief, who is, in the contracts under consideration, spoken of as “ Chief of Construction,” his official title being “ Director of Works.” Graham, his “ Assistant Director of Works,” acted under Burnham's orders as assistant chief of construction in actual charge of these buildings. It is said by appellee’s attorneys that there is no evidence of “ express authority in Graham or Updike to make a cop tract.” Updike was superintendent of construction of the Manufactures Building under Graham. The original written contract provided that the contractor waived all claims to allowances for extra work unless “ furnished upon a written order signed by the chief or his subordinate duly authorized.” The contract therefore contemplated allowances for extra work upon a written order signed by Graham as assistant chief, if the latter was “ duly authorized; ” and it will scarcely be seriously contended that the order placing him in charge of the buildings and men employed thereon and requiring the superintendents in the building service to report directly to him, was not an authorization to represent and act for the chief in reference to such extra work and materials as should, become necessary to supplement the contract and properly complete the work on the buildings which the contract contemplated. If he had authority to give such order in writing, but gave it orally instead, and the work and material were furnished accordingly and accepted by appellee, the requirement that the order should be in writing will be deemed to have been waived. As said in City of Elgin v. Joslyn, 36 Ill. App. 301, if it was intended to enforce the requirement of a written order against the contractor, it was the duty of appellee’s agent to comply therewith himself. The neglect to do so must be regarded a waiver of the requirement. C. & E. I. R. R. Co. v. Moran, 85 Ill. App. 543, affirmed in 187 Ill. 316-324. Acceptance of the work done pursuant to such verbal order is equivalent to acquiescence in and ratification of the act of the agent in giving the order. But some part, at least, of the extra work for which appellant seeks to recover is apparently not within the terms of the written contracts. If by a contract appellant contracted to do only exterior work on a building, and thereafter bv direction of and agreement with appellee or its duly authorized agent did interior work, this was evidently a new and substantially different undertaking, not provided for in the writing; and the provision of the written contract that allowance shall be made only for “ such extra work and material as shall have been furnished under the written order ” of the chief, is not applicable to a new and different contract containing no such provision. City of Elgin v. Joslyn, 136 Ill. 525; C. & E. I. R. R. Co. v. Moran, supra; Cook County v. Harms, 108 Ill. 151; Wood v. City of Ft. Wayne, 119 U. S. 312-320. We conclude, therefore, as to the first class of appellant’s claims, that it was competent to introduce evidence tending to show what the verbal orders and agreements were, in pursuance of ■which work not covered by the original contracts was done, and that it was error to exclude such evidence. The second class of claims for which appellant sues is for damages alleged to have been suffered by the failure of appellee to have the buildings ready, so that appellant could proceed with the work within the time contemplated by its original written contracts. This time expired under the three contracts respectively March 22, April 2 and May 9, 1902. It is claimed and there is evidence tending to show that none of these buildings were ready so that the contract work could be completed within the time specified, and that wages advanced thereafter, so that the cost of the work to appellant was thereby enhanced. It is claimed that appellant suffered loss by reason of the delay in getting the buildings in readiness for the performance of the contracts within the time specified. The propriety of an allowance of claims for damages for such delay, when supported by the evidence, has been recognized. Tobey v. Price, 75 Ill. 645-647; Michigan Avenue M. E. Church v. Hearson, 41 Ill. App. 89-92. And the contractor was not obliged to abandon the work and sue for damages, but had the right to proceed to complete it and then claim damages. There is, however, a provision of the contract that in case óf such delay, written notice must be given to the chief at the time, and the chief shall allow a just amount of extra time, and in case th'e parties disagree as to the true value of extra or deducted work, or the amount of extra time, or the true meaning of any covenant or agreement in the contract, the decision of the chief as to all" these matters shall be final and binding. It is contended,however,by appellee,that the stipulation in the contracts that if delays are occasioned by other contractors additional time will be allowed, within which to complete the work, by implication means that there is to be no pecuniary compensation on account of damages suffered bv such delays. It is conceded that there was delay, and it does not seem to be denied that wages rose in the mean time, and that it cost appellant considerably more on that account to perform its contracts. The provisions of the contract referred to do not purport to authorize the chief to determine what, if any, damages the contractor might suffer from such delay. The question is not as to the amount of extra time to be allowed the contractor. There might be no contention as to such allowance, and yet the contractor might be seriously damaged by a rise in the cost of material and labor, possibly to such an extent as to cause him absolute loss. We are of opinion that the language used in the contract did not submit this question of damages to the decision of the architect or chief. Nelson v. Pickwick, 30 Ill. App. 333; Mich. Ave. M. E. Church v. Hearson, 41 Ill. App. 89; Frost v. Rand, McNally & Co., 51 Ill. App. 276. The court instructed the jury at the instance of appellee’s counsel that appellant was not entitled to recover forpriming on the interior of the Manufactures Building, .if such claim was in good faith considered by the chief of construction or his assistant,whether allowed or disallowed by him or his assistant. As we have said, it does not appear that this interior priming nor the replacing glass broken without any fault of appellant was included or contemplated in the provisions of the contract. These appear to have been matters entirely outside of the contracts, and if so, they were clearly not among the things thereby submitted to the decision of the chief or his assistant. The jury were also instructed that they were “ at liberty to decide that the preponderance of the evidence is on the side which, in their judgment, is sustained by the more intelligent and better informed, and the more credible and the more disinterested witnesses, whether these are the greater or the smaller number.” This instruction has been O often condemned. A witness may be more intelligent and better informed, more credible and more disinterested than others, and if this is found to be so, then the jury are told that as a matter of law the preponderance of the evidence is on the side sustained'by such witness, no matter how much testimony there may be on the other side. This is an invasion of the jury’s province to determine for themselves what the weight of the evidence may be, and where it preponderates. Chicago City Ry. v. Keenan, 85 Ill. App. 367, and cases there cited; L. N. A. & C. Ry. Co. v. Shires, 108 Ill. 617-632. :: We have noted appellee’s argument to the effect that in this case the instruction is not, subject to the objections, such as were found to exist in the cases cited, but are unable to concur in the view that it was not improper in the case at bar. We have not undertaken to consider in detail all the points discussed in the somewhat voluminous briefs, but to express our views rather upon the general principles which should in our opinion govern in deciding the issues involved. The judgment of the Circuit Court must be reversed and the cause remanded.