Whitcomb v. Seney, 199 Ill. App. 526 (1916)

June 1, 1916 · Illinois Appellate Court · Gen. No. 21,260

199 Ill. App. 526

Henry S. Whitcomb, trading as Henry S. Whitcomb & Company, Defendant in Error, v. Edgar F. Seney and Roland T. Rogers, trading as Seney, Rogers & Company, Plaintiffs in Error.

Gen. No. 21,260.

(Not to be reported in full.)

Error to the Municipal Court of Chicago; the Hon. Harry M. Fisher, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.

Affirmed.

Opinion filed June 1, 1916.

Statement of the Case.

Action by Henry S. Whitcomb, trading as Henry S. Whitcomb & Company, plaintiff, against Edgar F. Seney and Boland T. Rogers, trading as Seney, Rogers & Company, defendants, to recover for goods sold and delivered. To reverse a judgment for plaintiff, defendants prosecute a writ of error.

In this case there was a directed verdict for the plaintiff who sold to William E. Spencer a certain number of ranges, stoves and refrigerators for installation in an apartment building, to help erect which defendants had loaned Spencer money. Work on the same having stopped, defendants (primarily to secure their loan) entered into a written agreement with Spencer to complete the buildings “free from mechanics’ liens and save William E. Spencer harmless from all claims for material and labor,” and took over the title to the real estate in the name of a third party.

Adams, Crews, Bobb & Wescott, for plaintiffs in error.

Baker & Holder, for defendant in error; Gr. Raymond Collins, of counsel.

* See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice Barnes

delivered the opinion of the court.

Abstract of the Decision.

1. Building and construction contracts, § 16 ^* —when construed as for "benefit of third persons. A written contract entered into by the defendants primarily to secure their loan to a building contractor, whereby they agreed to complete a building under construction “free from mechanics’ liens and save the contractor harmless from all claims for material and labor,” construed to be one for the benefit of a third party who had furnished material and labor for the building, and entitling him to sue thereunder.

2. Contracts, § 347*—when subcontractor may sue on contract. Where a manufacturer’s agent has bought from his principal and paid for goods which he subsequently sells to a building contractor with whom the defendant has entered into a contract to complete the building in the process of construction free from mechanics’ liens and save the contractor harmless from all claims for material and labor, such agent can bring suit in his own name against the defendant on such contract.