Wilson v. Bauman

Citations

• 80 Ill. 493

Syllabus

<p>1. Contract—when a party may abandon, and sue for what has been done under it. Where one party fails to perform his part of a special contract, which prevents the other from performing his part, the latter may abandon the contract and bring assumpsit for what he has done under it, if that action would lie but for the special agreement.</p> <p>■ 3. And if one party has performed the contract substantially, or has performed part, and the balance is waived, or prevented by the other party, and the part performed has been accepted and appropriated, the party so performing may sue upon the contract and recover for what he has done, according to the contract price; but where the suit is not brought on the contract for work done in conformity with its terms and accepted, the recovery can only be for the value of the services rendered, without reference to the contract.</p> <p>3. Evidence—experts not required, to prove custom or usage. Where the plaintiff, to show he was employed by the defendant to superintend the construction of a building, proved by witnesses a custom that the employment of an architect to make plans and designs for a building, carried with it an employment to superintend its construction, it was held, error to refuse to allow the defendant to show there was no such custom, except by architects. Such custom must be as well known to builders and contractors as to architects, and does not require special skill or science to know of its existence.</p> <p>4. Custom—requisites, to affect contract. A custom or usage, to affect a contract, must not be in opposition to any principle of general policy, nor inconsistent with the terms of the agreement between the parties, or against the established principles of the law. Besides this, it must be generally known and established, and so well settled and so uniformly acted upon as to raise a fair presumption that it was known to both contracting parties, and that they contracted in reference to it and in conformit