Hartrath v. Holsman

Mr. Justice Brows' delivered the opinion of the court. The principal point made by appellant is that the contract on which the claim for a lien in this case is based does not provide a time for the completion of the contract and for the time of payment, and therefore under the law will not sustain the appellee’s claim. The contract in its first paragraph reads: “Mr. Medard Hartrath. The undersigned (Henry K. Holsman) proposes to furnish architectural service for your flat building to be erected on or before 1st May, 1902, at 69th and Washington Ave.,” etc. Appellee contends and the chancellor below held that this sufficiently determined the time for the completion of the contract, and that as the contract provides that “Payments are due successively as my work is completed in the order and proportion of the above classification.” “For full professional services (including supervision) five per cent, upon the cost of the work,” the time of payment is also specified. The appellant replies to this by insisting that there is a distinction between “erecting” a building for which the contract provides a time limit, and “completing” a building, for which the contract should have provided a time limit to make it sufficient for a basis for this proceeding. To establish this contention he cites Johnston v. Ewing Female University, 35 Ill. 518, where (at page 528) the court says: “There is a great difference between erecting a building and completing one. A building may be said, without doing violence to language, to be erected when the walls are up and the material on the ground to complete it.” Despite the directness of the language quoted, it is an instance of a citation “where the letter killeth and the spirit maketh alive.” An examination of the case for the principle involved shows at once that the general principle expressed is that it is not the nice, exact and precise meaning of a word that is to be always taken as its import in a contract, but rather what the parties intended by it as gathered from the contract and the circumstances. Moreover, the particular application of that principle in the Ewing University case was only that in that case “erected” was not by the parties used as synonymous with “completed,” and that it was not imperative that it should be so construed. The general principle announced may well govern the case at bar, and a similar application of it lead to a different result. We think that result may be thus stated: The parties to this contract used the word "“erected” as synonymous with “completed,” and there is no reason why it may not be thus interpreted. It may mean “completed”, and it may not. Here it does. We think the chancellor below was right in deciding that the contract involved in this case fixed both a time for its completion and for payments. There is nothing in the objection made to the testimony of appellee as to the extras charged for. The essential part of it objected to was called out by the cross-examination of the appellant’s counsel. There is nothing" unusual or improper in appellee making a claim for the full amount he thinks legally due under the contract, although he has before offered to settle for less or presented a bill for less. Of course such a charge of less can be used in evidence and argument as tending to show a defense to the additional amount claimed, but that proposition is not in question here. We do not deem the other matters argued concerning the evidence and procedure below require discussion from us. The objection that the decree entered April 21,1905, was for $161.74, although on March 23, 1905, the chancellor announced his intention of entering one for $142 only, is not well taken. The chancellor evidently meant to declare that $142 was due at the date that Mr. Holsman made the demand which was disregarded, namely, July 8, 1902. Interest on that amount from that day to the daté of the decree makes up the difference complained of. The decree of the Superior Court is affirmed. Affirmed.