Larson v. Sexsmith, 172 Ill. App. 525 (1912)

Oct. 3, 1912 · Illinois Appellate Court · Gen. No. 16,776

172 Ill. App. 525

Victor Larson, Defendant in Error, v. J. E. Sexsmith, Plaintiff in Error.

Gen. No. 16,776.

1. Appeals and ebbobs — when refusal to admit parol evidence as to written contract will not reverse. The owner of a building, contending that decorating was not done in accordance with an understanding at the time the written contract was entered into, cannot complain of the refusal to admit parol evidence as to the consideration for the making of the contract and the meaning of the word “decorating,” where all the facts and circumstances connected with the making of the contract were brought out in cross-examining the decorator’s witnesses and the owner testified fully regarding the nature and character of the work and that during its progress he made objections.

2. Contbacts — when question of proper performance is for the jury. Where the evidence is conflicting whether objections to defective work by a painter and decorator were remedied after the objections were made, and whether the contractor told a witness to use a medium grade of material, such questions are for the jury.

Error to the Municipal Court of Chicago; the Hon. IIenby C. Beitler, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.

Affirmed.

Opinion filed October 3, 1912.

Adams, Bobb & Adams, for plaintiff in error.

Johnson & Molthrop, for defendant in error.

Mr. Justice Fitch

delivered the opinion of the court.

This writ of error is brought to reverse a judgment entered in the Municipal Court against plaintiff in error for $117.25.

In September, 1909, the parties hereto entered into a written contract, by the terms of which Larson agreed “to furnish all material and labor for the painting and decorating of a six-flat building for Miss Doyle, being erected on Winthrop avenue, north of Leland avenue, for the sum of $500, payable 85 per cent, as work progresses, balance thirty days after completion of job.” Sexsmith, a contractor, was erecting a building for the Miss Doyle mentioned in the agreement. Under this contract, Larson and his workmen filled, shellaced and varnished all the oak woodwork and floors; stained, shellaced and varnished the doors; “hard oiled” and tinted the ceilings and walls; painted the dados in the kitchen; enameled the woodwork of the bathroom, and painted the wood and metalwork of the exterior of the building. During the progress of the work, the contractor ordered “linowall” to be placed in the dining rooms and around the stairways, which was done at a net additional cost of $12.25. Pour hundred and twenty-five dollars was paid on the contract as the work progressed, leaving the balance, including the price of the extra work, $117.25, for which judgment i^as rendered. Counsel for plaintiff in error state in their brief that on the trial below, they sought to show as a defense “that the contract was not performed according to the agreement and understanding between the parties at the time the written contract was entered into; the sole question on this appeal being the refusal of the trial court to admit evidence as to how the contract was to be performed by the defendant in error; in other words, to admit evidence as to the consideration for the mailing of said contract, the contract being-silent as to what kind of material was to be used and the manner in which the house was to be decorated, and what was meant by the word decorating-.”

While it is unquestionably true that a party may prove the existence of a separate oral agreement as to matters on which a written contract is silent, and which is not inconsistent therewith, if it can be inferred that the parties did not intend the writing to be a complete and final statement of a given transaction, and that this rule applies to parol agreements as to how a written contract is to be performed (Razor v. Razor, 39 Ill. App. 527; Ball v. Benjamin, 73 Ill. 39), yet, after an examination of the record in this case, we do not think the plaintiff in error has any just ground of complaint as to the rulings of the trial court in this respect. On cross-examination of the witnesses for defendant in error, counsel for plaintiff in error brought out all the facts and circumstances connected with the making of the contract, and the plaintiff in error testified fully regarding the nature and character of the work which was done by defendant in error. Plaintiff in error testified that during the progress of the work, he objected to the results obtained in several minor details of the work. The evidence as to whether the defects thus pointed out in these minor details of the work were remedied by the defendant in error is conflicting, but we cannot say that the verdict was manifestly against the weight of the evidence. One of the witnesses for defendant in error testified that the contractor told him to use a medium grade of material; that if it made as good a showing as on a certain other flat building, which was mentioned, he, the contractor, would be satisfied; and that the contractor several times expressed his approval and satisfaction. This was denied by the contractor, but it was a question of fact for the jury, and we think the facts and circumstances corroborate the evidence of the witness for the defendant in error. There was no controversy in the court below regarding the extras, and as the remainder of the work was merely painting and calcimining, and as it was shown by evidence in the trial court that such work was done in a workmanlike manner, we think substantial justice has been done.

The judgment of the Municipal Court will therefore be affirmed.

Affirmed.