Joseph N. Eisendrath Co. v. Gebhardt

Mr. Justice Ball delivered the opinion of the court. Appellant contends that the decree does not contain a sufficient recital of facts to sustain it. The court finds that the parties entered into the contract of April 22, 1903, for the masonry, excavating, etc., complete for the factory warehouse to be built for appellant as set forth in the contract; finds the sum to be paid for such labor and material, and the manner of paying the same; finds that final payment was to be made thirty days after the contract was fulfilled; finds that all such payments were to be made upon written certificates of the architect that they had become due, and that October '5, 1903, appellees received from the architect a final certificate, which is set out in full; and that this certificate was presented to appellant and payment refused. The court further finds $1,491 is due under the terms of the contract and the architect’s certificate, with interest, and attorney’s fees amounting to $74.50. The court further finds that appellees have “fully complied with the terms of the contract, and that the materials and labor used on said premises constitute an additional and valuable improvement.” The demurrer admits all the material allegations of the bill which are well pleaded. This being so, if the bill states a good cause of action, the decree need not set out the evidence. In the bill all the facts necessary to sustain the decree are set forth; and it states that appellees “did in all respects comply with said contract and specifications and drawings thereto attached by them required to be performed.” It further alleges that October 5, 1904, after the completion of said contract, appellant accepted the building, took possession of, and ever since has occupied the same. By the contract the final certificate of the architect, who is named as the agent of appellant, is made conclusive evidence of the performance of the contract. We are of the opinion that the bill is good and that the decree is sufficient. The amended bill is not a new cause of action. For some reason not shown, the original bill, which sets out the contract, and the contract attached thereto, do not in date and in a few other minor particulars agree with the allegations of the amended bill and with the contract filed therewith. But the work agreed to be done as alleged in the two bills, and as stated in the two contracts, is the same, the price is the same, the architect is the same, the certificate is the same, the property is the same, the parties are the same, and the relief asked is the same. We therefore are of the opinion that the same cause of action is set out in each of the bills, and that the original bill is a defective statement of the cause of action set forth in the 'amended bill. The contract in this case provides that the work shall be completed July 1, 1903. The final payment is to be made thirty days thereafter upon the obtaining of the certificate from the architect. That certificate was not issued until October 5, 1903. In Packard v. Van Schoick, 58 Ill., 79, where the building contract provided that payments should be made only upon the estimate and certificate of the superintendent of the work, it was held that the obtaining of such certificate is a condition precedent to the payment of the money, and that an action to recover therefor, before it was obtained, was prematurely brought. Where by contract the parties have fixed upon a particular mode by which the right to payment is to be ascertained, the contract furnishes the law of the case and that mode must be followed. In Weber v. Bushnell, 171 Ill., 587, the work upon the building was to be completed April 1, 1895, and final payment was to become due forty days after the work was completed. The architect’s final certificate was not issued until September 17, 1895. The court held that the final payment under the contract did not become due until forty days after the last named date; and hence a statement of claim for lien filed by the contractors with the clerk of the Circuit Court November 12, 1895, was within four months after final payment became due as required by the statute. So here, the final payment did not become due and enforceable until the 5th of October, 1903, and the original bill in this case having been filed December 16, 1903, this suit was commenced within four months after the time the money became due. Appellant contends that the contract fixes no time for the completion of the work. The provision in this regard is, “The contractor shall complete the several portions and the whole of the work comprehended in this agreement by and at the time or times hereinafter stated, the entire masonry to be completed on or before July 1, 1903.” It is argued that as the contract includes excavating, concrete, foundations, rubble stone work, pressed brick and cut stone work, etc., the naming of the date for the completion of the “entire masonry” did not fix a date for the completion of the remainder of the work provided for in the contract, and that hence no lien can be allowed under the Act of 1895. “Masonry” is a generic and therefore an inclusive word. It means “ that which is built by a mason; anything constructed by a mason of the materials used by masons; such as stone, brick, tiles, or the like.” Webster. The word “masonry” includes all that appellees agreed to furnish and to do in this contract. The objection is not well founded. > Finding no reversible error in the trial of this cause, we affirm the decree of the Superior Court. Affirmed.