Estep v. Fenton

Citations

• 66 Ill. 467

Syllabus

<p>1. Contract&emdash;chiwacter of performance necessary to a recovery. In a suit to recover for work, labor, etc., in building a ckurcli, where the evidence was conflicting as to whether the house was completed, or the work performed in a good and workmanlike manner, or the materials used were of the character contracted for, the court instructed the jury, that if the contract for the building was completed substantially according to its terms, and nothing remained further to be done by the defendants but to pay, and the balance due was fixed by the contract, they could allow interest: Held, that the portion of the instruction which required only a substantial compliance with the contract and left the jury to find whether there had been such a performance, was improper and well calculated to mislead the jury.</p> <p>2. Same&emdash;rfect of acceptance of building. Where the work on a building is not performed according to the agreement and not done in a workmanlike manner, or the materials used are not as good as contracted for, the contractor can only recover the reasonable worth of the work and materials, not exceeding the contract price, notwithstanding an acceptance of the building, unless such acceptance is in full discharge of the contract.</p> <p>3. Same&emdash;recoupment. Where a contract for a building is not performed according to the terms of the contract, the owner may recoup the damages sustained in consequence thereof in a suit to recover the price, although he may have done acts amounting to an acceptance of the building.</p> <p>4. Same&emdash;instruction taking necessary facts from jwi'y. Where a contract for the building of a church and the furnishing of materials therefor required the building to be similar to another church, and it appeared that, at the time of the alleged completion of the church, or at some subsequent date, the other church had iron rods to support the building and prevent it from spreading, it is proper for the jury, in a suit