Mears v. Nichols

Citations

• 41 Ill. 207

Syllabus

<p>1. Contracts—where a party fails to execute his work according to contract— rights and remedies of the parties. Where a party has built a waterwheel for a mill for another, the latter furnishing the materials therefor, and the builder agreed that the wheel should do certain specified work and should be satisfactory to the other party, and the builder had notice, formal or informal, but substantial, that the wheel did not do the required work, and was not satisfactory, he has no cause of action for his labor, either upon a quantum meruit or otherwise, his only remedy being to pay for the materials in the wheel furnished by the other party, and take it away.</p> <p>2. And in such case, the party for whom the wheel was built, and who furnished the materials, is not bound to return the wheel or permit it to be taken away, without payment for the materials, nor to incur any expense in removing the wheel.</p> <p>3. The doctrine of election to return or keep the article, has no application in such a case. So, the party for whom the wheel was built would not become liable to pay the contract price for building it, by failing to return it in a rea</p> <p>• sonable time. Where there is an express warranty that an article is of a certain quality and shall answer a specified purpose, it is not necessary that the purchaser, before he can bring suit, should offer to return the property. He may bring suit for damages, or in a suit against him for the price, he may claim such damages by way of recoupment or set-off.</p> <p>4. Without giving notice of the defect in the wheel, and without an offer to return it, he would be entitled to recoup his damages for breach of the contract in building the wheel.</p> <p>5. «Even a refusal to permit the builder to take away the wheel would not render him liable for the contract price. Where there is an express warranty that the article made shall do certain specified work, in a suit for the price the vendee may recover his damages by way of r