The Ottawa free trader. [volume] (Ottawa, Ill.) 1843-1916, 1845-04-11
BY HISE & OSMAN.
INTuE SUPREME COURT.
LOWELL KIMBALL Ell. al plaintiffs in error, Z. AM
ASA G. Cook, defendant in error.
Error 10 Kendall

Error 10 Kendall
Burr ERrIELp and HOES, for plff in error.
DIcKEY and LINCOLN for def. ia error.
CAroS, Justice, delivered the opinion of the
court:
Cook fled his bill in the La Sale circuit court
under the act of 1889, for the purpose Of onforc-
ing mechanics lien. The bill sets forth a con-
tract made between Cook tfhd Kimball, dated
June 81, 1885, by which Cook was to do the mill
wright work of Touring mill in particular man.
ner. on specified 10, in the town of Marseilles,
for which he was to receive 81 SEQ, the onc-hali
rs the work progressed. 1t then AYERS that he
had done the work according 10 the contract, ex-
cept putting in corn-cracker, which Kimhall
had not furnshed that he has received 50 400
in part payment, and that 50 400 still remain due
and unpaid The answer denies that the work
had been done in pursuance of the contract, spe-
cifylng several particulars and denies that any
thing is due. A replication was filed by Cook,
and the venue changed to the county Of Kendall,
where the was tried by jury. who found a
verdict for the complainant for $4,000, the full
amount claimed by him, on which judgment
was rendered. Exceptions were taken TO several
decisions of the court during the trial, and to an
instruction to the jury, which are here assigned
for error. We will consider such as we deem
important.
On the tiiai, tho complainant offered to read
the deposition Of one Miller, which had been re-
guarly taken, and the defendants objected to the
reading Of the answers to the 10Th and l7th in
terrogatories; which was overrued by the court,
and the entire deposition read TO the jury These
heterogeneous inquired whether the contract had
been complied with by Cook in the amount and
quality of the work; and the time of completion
After stating some defects in the work, the wit
an 4
the packing room, and examined the contracts by
ourselves. After having privately examined the
work, we came to the conclusion that the con-
tract, according TO our. Judgment was fulfilled
the part Of Cook, with the above EXCEPTIONS
Even admitting that this part of the deposition
was cxcep,ionabse on accouAt of its generality,
and, also, of its involving construction of the
contract within itself; yet it too late TO make
such objections at the trial. All objections which
might be obviaicd hy denomination of the wit
ness mus, be considered waived, if no, taken be-
fore the trial. This part Of the deposition espe-
cia'ly, when taken in connection with the balance
Oft, had a legitimate tendency to prove the COM
plainants case; and the party cannot be allowed
to lull his adversary into security by his silence
ill the trial commences, and then spring an OBJ
lection on him, which, il sustained, may deprive
him of the proof of material facts, which he might
have established in more formal and regular
mode, had the objection been made and sustained
at an earlier period.
II is assigned for error that the court instructed
the Jury, That, they believed from the evidence
that the defendant, Kmball, or any person under
him, took possession Of the mill and used the
came, that the plaintiffs entitled TO recover the
value of the work performed by him on said mill
although the same was not completed according
to the contract: that the jury, in such case.
should find for the plaintiff for the work per-
for ned according 30 the contract price deducing
therefrom such damages the defendant, Kim
ball, may have sustained by reason Of the nom
performances Of the residue Of the work agreed by
the contract to he performed. and, also, deducting
the pay men, rrade on said contract"
Under this form of action, we are of opinion
that this instruction was not correct. The suit
was instituted on special contract, and e hill
averred Performance on the par, of the compla-
nant, except in one particular, where he was pre-
vented from performing by tho defendant. To
have sustained his case, he must have proved it
as alleged. He could not abandon il, and 60 rs
for a quanium meruH. This instruction was ei-
ven upon the hypothesis that the jury should
find that the plaintiff had not complied with his
part of the contract. But the jury found that he
hal completed his part Of the agreement, and, con-
seIuently, the contingency did not occur in the
deliberations Of the jury. when it would have be-
come necessary to apply the principle laid down
have found that the contract complied with
on the part Of Cook from the fact that they assess.
ed the compliments damages at 81 400, which
was the full amount claimed by him as unpaid on
the entire contract. For this error VIC should moi
reverse The judgment.
The next and by far the most important ques
ton il, whether the court decided properly in de-
nying the application of Kimball to read as evil
dencc 10 the jury that portion Of his answer which
was responsive to the hill. In order to determin,
this, il is necessary to determine whether this il
o proceeding at law or in chancory. H. is not SC
much Ivy what name the proceeding may be call
ed, as the powers with which the court is clothed
the mode by which the cour, is to proceed, the in
tercsts,to he affected, and the end to he attained
to which we must look to determine the true ma
ture and character Of this proceeding. tits lru
that this court, in the case Of Turney ct al. Us
Saunders ct al, q Scam. 533, said that the law o
1899 had made this chancery proceedings hut
as that was not tho direct question before tn
court, and as that remark was incidentally mad
in attempting to illustrate another question: W
do not consider ourselves bound by it as authori
". Hence we shall proceed to examine The ques
ton as new one before this court.
y The first and second sections Of the oct Great
the lien, specifying its extent, and the nature
the contrac, under which it may exist, The hir
section provides that the creditor shall! proceed b
bill or petition in the clerks office, and suing GU
simmons thereon shall DO deemed the con
mcncement of the suit. The fourth section pre-
vdes that tho bill or petition shall contain
statement, Of the contract, description of til
premises sought to he subjected to the lien, an
oil other material facts and circumstances necei
ssry to q full understanding of the rights of Il,
parties, ard shall be considered the foundation ,
Tho action; "and upon filing which with III
clerk, a summons shall issue thereon against a
persons made parties. as is required upon film
bills in chancery." The cause Of action is state
by bill, which is to contain tho same matter as
bin in chancery. and, like suits In chanccfy, II
bill must be filed before the process goes out. m
this process also must be the same as in chanc
ry. which, Of course, must be served by The she