text:
    Avery Brundage, Appellant, v. Gustav H. Gottschalk, Appellee.
    Gen. No. 35,459.

      Heard in the second division of this court for the first district at the October term, 1931.
    Opinion filed February 23, 1932.
    Rehearing denied March 5, 1932.
    McNab, Holmes & Long, for appellant; Allan W. Cook, of counsel.
    Jacobson, Merrick, Nierman & Silbert, for appellee.
   Mr. Justice Kerner

delivered the opinion of the court.

Avery Brundage, plaintiff, brought suit against Gustav H. Gottsehalk upon a written guaranty of defendant, and filed a declaration from which it appears that he entered into a contract with the Shoreland Hotel Company by which he agreed to furnish certain labor and material in connection with a building to be erected by the Shoreland Hotel Company at 5484 South Shore drive, Chicago, Illinois, for which the Shoreland Hotel Company agreed to pay plaintiff $700,000, payable $630,000 in cash, and a last payment of $70,000 to be paid with 700 shares of the 8 per cent preferred capital stock of the Shoreland Hotel Company, which said stock was to be issued to the plaintiff subject to a provision that it would be redeemed by the Shoreland Hotel Company at the price of $100 in cash, per share, on or before May 1, 1929; that for a good and valuable consideration the defendant promised and agreed that should the Shoreland Hotel Company fail to redeem said stock from the plaintiff on or before May 1, 1929, upon notice of such failure, and 30 days after presentation of such stock to him, he would purchase and pay for it at the rate of $100 per share; that plaintiff did all that it was required for him to do under this contract, and subsequently a certificate for 700 shares of the preferred capital stock of the Shoreland Hotel Company was issued to him; that on May 1, 1929, the said certificate of stock was presented to the Shoreland Hotel Company, but it refused to accept the certificate and pay to the plaintiff $70,000 in cash; that immediately thereafter plaintiff notified defendant of this default and tendered the certificate to him and demanded that he pay the plaintiff $70,000 therefor. Such payment not being made within the 30 days, in accordance with the terms of the agreement, plaintiff brought suit.

The defendant in addition to his plea of non assumpsit also filed a special plea. This plea sets up that on March 25, 1927, the defendant executed and delivered to the Shoreland Hotel Company, a certain release; that by this release the plaintiff discharged the Shoreland Hotel Company from its obligation to purchase the 700 shares of the preferred stock owned by the plaintiff in the Shoreland Hotel Company and that the legal effect of such release was to discharge the defendant from his obligation to purchase the same in the event of the default of the Shoreland Hotel Company.

The plaintiff filed an amended replication to this special plea, to the effect that after the execution of the contract of May 25, 1925, plaintiff furnished extra materials and work and a controversy arose between the plaintiff and the Shoreland Hotel Company relative to the amount due for such extra work and material; that plaintiff filed a contractor’s claim for lien, claiming there was due him for such extras $57,163.56; that the Shoreland Hotel Company countered with a claim that plaintiff under the contract of May 25,1925, had improperly installed a part of the work on the building and offered to compromise plaintiff’s claim by the payment of $20,000; that at that time there was no controversy by reason of plaintiff’s ownership of the preferred stock; that plaintiff refused said offer but did enter into an arbitration agreement; that the arbitrator found there was due an additional sum of $8,000 from the Shoreland Hotel Company, which said sum was paid by plaintiff on March 25,1927, and thereupon plaintiff executed the release set forth in defendant’s plea; that said release had nothing whatever to do with such stock that plaintiff then held or with the agreement of the Shoreland Hotel Company to repurchase the same, and that it was executed solely and only for the purpose of releasing the plaintiff’s claim against the Shoreland Hotel Company for extras.

To this plea defendant demurred. The demurrer was sustained, and plaintiff electing to stand by his amended replication, judgment was entered against the plaintiff. To reverse this judgment plaintiff appealed.

Counsel for plaintiff say, “the only issue is whether or not this release constitutes a bar to plaintiff’s cause of action. ’ ’ There is no claim that there was any fraud or mistake in the execution of the release by any misrepresentation as to the character of the instrument signed, but plaintiff’s contention is that it appears on the face of the release that he did not release the Shoreland Hotel. Company from its obligation to purchase the stock and that extrinsic evidence was admissible to show the release was not given for the purpose of relieving the Shoreland Hotel Company from its obligation to purchase the stock. We agree with counsel for plaintiff that great liberality should be allowed in construing the release and that it must be considered and interpreted as a whole, and from it as a whole, must be gathered the intention of the parties. The release is under seal. It does not contain a preamble or recital nor does it refer to any other claim between the plaintiff and the Shoreland Hotel Company and in it the plaintiff released the Shoreland Hotel Company of and from all manner of actions and causes of action, suits, debts, accounts, bonds, covenants, claims and demands whatsoever, in law or in equity, which against the Shoreland Hotel Company plaintiff ever had, now has or by reason of any cause, matter or thing whatsoever, and more particularly from all manner of action and causes of action which he had or may have of and by reason of work done and performed by plaintiff for the Shoreland Hotel Company under a certain contract made and executed May 25, 1925, or for or by reason of a certain claim for lien filed in the circuit court of Cook county as claim No. 94493, for the sum of $57,163.56.

Plaintiff’s counsel in arguing for a reversal say that from the release it can be reasonably inferred it was not intended that plaintiff should release the Shore-land Hotel Comp.any from its agreement to repurchase the stock. We cannot concur in this contention as it is obvious that the release is in form a general release, with the customary, broad, absolute and unequivocal terms, and it discharges every liability of the Shoreland Hotel Company. Nor can we agree that in. the instant case extrinsic evidence would be admissible to contradict or modify the release, as a written contract, if unambiguous in its terms, cannot be varied, contradicted or modified by parol evidence of conversations relating to the subject matter of the contract, which occurred between the contracting parties before the execution of the contract. (Schneider v. Sulzer, 212 Ill. 87, 92; Engelstein v. Mintz, 345 Ill. 48, 60; 2 Parsons on Contracts (6th Ed.) p. 874^5.)

In Deland v. Amesbury Woolen & Cotton Mfg. Co., 24 Mass. (7 Pick.) 244, defendants pleaded a release under seal. Plaintiff contended it was not his intention by the release to discharge a certain Ward from the payment of a certain note and was permitted over the objections of defendants to explain and control the operation of the release. The court in reversing the cause said, p. 246: “The release is absolute and unequivocal in its terms, and it cannot be explained by parol evidence. If it was the intention of the plaintiff to except this note from the release, it should have been so expressed in the indenture.”

In Pierson v. Hooker, 3 Johns. (N. Y.) 68, it was said, p. 70: “But the instrument is general and comprehensive, and expressly reaches to every debt and demand of every kind. To show by parol proof that it was not so intended, is to contradict or explain away the instrument, which is contrary to the established rule of law.”

In Crum v. Sawyer, 132 Ill. 443, it was contended, as here, that general words are limited to the thing specially in contemplation of the parties at the time when the release was given. The court said, p. 464:

“Here the general and comprehensive expression comes first. It is that the party of the first part does ‘release ... all right and interest of every kind and nature whatsoever, and especially his contingent right of dower and homestead, ’ etc., in the lands of his wife. The larger and more general intent is first stated. . . . An intent thus expressed will not be defeated or limited by subsequent expressions more restricted in their application.’’

Chicago Union Traction Co. v. O’Connell, 224 Ill. 428, was an action for personal injuries sustained by O’Connell on March 8, 1902. O’Connell had also been injured by the Traction Company on July 18, 1903. The Traction Company offered in evidence a release under seal, which discharged the defendant from all claims, demands, actions, causes of action, or suits at law for or because of any matter or thing done, omitted or suffered to be done by the Traction Company, its agents or servants, from the beginning of the world to and including the date of the release, and especially on account of a certain accident which occurred on July 18, 1903. The question was whether or not this release operated as a bar to O’Connell’s cause of action resulting from the accident of March 8,1902. The court held that where a release contains general language followed by special references to a particular claim or cause, the release is not limited to the particular claim so specified, but operates as a general release of all causes of action. See also Dunbar v. Dunbar, 71 Mass. (5 Gray) 103,105; Hyde v. Baldwin, 34 Mass. (17 Pick.) 303, 307; Leddy v. Barney, 139 Mass. 394; Klopot v. Metropolitan Stock Exchange, 188 Mass. 335, 337, and Kirchner v. New Home Sewing Mach. Co., 135 N. Y. 182, 188.

Plaintiff also contends that his claim against the Shoreland Hotel Company arose subsequent to the execution of the release and for that reason it is not such a cause of action as could have been included in the release. We are of the opinion that the liability of the Shoreland Hotel Company to repurchase the stock under the contract of May 25,1925, was fixed and that plaintiff was possessed of a distinct right which was a proper subject of contract.

After a careful consideration of the rules applicable for the construction of such an instrument as is involved in the instant case, we are impelled to the conclusion that the demurrer was properly sustained, for the reason that the legal effect of the release is a bar to the action.

The judgment is affirmed.

Affirmed.

Gridley, P. J., and Scanlan, J., concur.


source: Caselaw Access Project

author: Mr. Justice Scanlan

license: Public Domain

text:
    Rockwood Sprinkler Company, Appellee, v. The Phillips Company, Appellant.
    Gen. No. 34,396.

      Heard in the second division of this court for the first district at the June term, 1930.
    Opinion filed February 23, 1932.

      Church, Haft, Robertson & Crowe, for appellant.
    Taylor, Miller, Busch & Boyden, for appellee ; Francis X. Busch and James J. Magner, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

By its amended declaration, the plaintiff, Roekwood Sprinkler Company, sued the defendant, The Phillips Company, in assumpsit. The case was tried before the court, with a jury, and there was a verdict returned for the plaintiff in the sum of $13,325. Judgment was entered on the verdict and the defendant has appealed.

The amended declaration consists of two counts; the first pleads a written contract between the plaintiff and the defendant for the installation of a sprinkler system, and alleges the installation of the system by the plaintiff and the failure of the defendant to pay for it. The second consists of the common counts. The defendant filed three pleas: the first, the general issue; the second alleged that the contract between the plaintiff and the defendant was cancelled and abandoned by mutual agreement on or about February 25, 1925, and the third is to the effect that if the plaintiff furnished the materials and labor as alleged they were furnished to the Hotel Theodore Corporation and not to the defendant. The plaintiff filed a similiter to the first plea, a replication to the second, and a general demurrer to the third, which demurrer was sustained. The defendant, by leave of court, filed two additional and amended pleas, the first pleading res judicata and the second estoppel by verdict.' To the last two pleas the plaintiff filed general demurrers, which were sustained.

The plaintiff is a corporation, engaged in the business of manufacturing, selling and installing automatic sprinkler equipment in buildings for the purpose of protection against fire. The defendant corporation “does not manufacture sprinkler equipment, but their principal business has been financing sprinkler equipment since they were organized. They own a sprinkler head and they developed and manufactured an automatic sprinkler head and dry valve, but we never have built it for commercial purposes. Substantially our operation is to solicit business from owners of buildings or contractors for buildings who want a sprinkler system and arrange a contract by which we put in the sprinkler system and take the first payments and then contract with some particular manufacturing company to manufacture that particular sprinkler system; or some owner or builder might want a sprinkler system and be unable to arrange credit terms and- they would come to us to finance the job.”

The written contract upon which the suit was brought reads as follows:

“Bockwood Sprinkler Company Executive Offices
134 So. LaSalle St., Chicago, Illinois
Chicago Office, June 10, 1924
“To The Phillips Company,
Chicago, Illinois.
Proposal
“The Bockwood Sprinkler Company proposes to furnish and install the equipment hereinafter specified ; and, in the event of the acceptance of this proposition, it is mutually agreed by the Bockwood Sprinkler Company and the Owner that:
“The Owner is to receive material and is to provide sufficient space for same and proper facilities for the prosecution of the work, together with light and elevator service if on the premises.
“The Owner is to obtain all permits that may be required for the installation of the Automatic Sprinkler Equipment herein specified. 1
“The Bockwood Sprinkler Company will prepare detail plans of the Automatic Sprinkler Equipment herein specified, which plans shall be approved by the Underwriters and submitted to the Owner before work of installation is commenced.
“Any additional labor or material which may be required by the Rockwood Sprinkler Company to carry on and complete the work, but which is not specifically described or enumerated in the annexed specifications shall be furnished by the Owner at the Owner’s expense as and when required, otherwise the Rockwood Sprinkler Company is authorized to furnish the same for the Owner’s account, at market prices. Any expense occasioned the Rockwood Sprinkler Company by delay in procuring such labor or material shall be extra to the contract price, and shall be paid by the Owner.
“If the work be discontinued by reason of fire, flood, strikes, lockouts, or other causes, not the fault of the Rockwood Sprinkler Company, there shall be immediately due and payable from the Owner, on account of the work, at the option of the Contractor, a sum equal to the expense of the Rockwood Sprinkler Company, paid or incurred for materials, labor and service up to the time of such discontinuance.
“It is further agreed that title to the materials and equipments furnished by the Rockwood Sprinkler Company is to remain in- the Rockwood Sprinkler Company, and that said materials and equipments are to be the personal property of the Rockwood Sprinkler Company, however they may be affixed to the realty, until all payments therefor shall have been fully made in cash; and that if default is made in any of the payments according to the terms herein specified, the Rockwood Sprinkler Company shall be entitled to enter the premises where said materials and equipments may be located and take immediate possession of and remove the same as its property, without prejudice to rights of action for further damages which the company may suffer, and that the Owner will perform all acts which may be necessary to perfect and assure such retention of title to said materials and equipments in the Bockwood Sprinkler Company.
“All earth, carpenter or mason work and painting required for the system herein specified, including all foundations, supports, staging and enclosures, shall be furnished and paid for by the Owner, unless otherwise herein specifically stated.
“Any loss or damage by any cause, not the fault of the Bockwood Sprinkler Company, which may occur to its materials, tools, equipment, or the labor expended thereon, while in and about the Owner’s premises, shall be borne and paid by the Owner; and the Bock-wood Sprinkler Company shall, under no circumstances, be held liable for any loss, or damage, by delay, or other cause beyond its control.
“The Bockwood Sprinkler Company shall not be liable for any loss or damage arising from or because of the care or character of walls, foundations or other structures not erected by the Bockwood Sprinkler Company.
(Here follow numerous specifications.)
“This proposition is submitted in duplicate and is withdrawn if not accepted within ten (10) days from its date, unless the time for acceptance is extended in writing. Your acceptance, when approved by an Officer of this Company, will constitute a contract between us.
“Bockwood Sprinkler Company By B. B. Heath
Bockwood Sprinkler Co., Approved:
Per B. S. Bipple
“We hereby accept the above proposal
this 21st day of June, 1924
The Phillips Company
Per B. E. Phillips,
Secy. & Treas.”

At the time the defendant entered into the above contract it also entered into a financing contract with the Hotel Theodore Corporation, the owner of the building in which the system was installed. There is no doubt that the defendant was a principal to the contract upon which the suit was brought. The second plea filed by the defendant admits that it was entered into between the plaintiff and the defendant, and alleges that on February 25, 1925, “the plaintiff and the defendant, The Phillips Company, agreed together to cancel and abandon and did cancel and abandon the contract theretofore entered into between them as alleged in the plaintiff’s amended declaration, so that from and after said date there was no contract or agreement between this defendant, . . . and if the plaintiff furnished any of the materials, labors or services in the aforesaid first count set forth, the same were furnished to the Hotel Theodore Corporation and not to this defendant.” The defendant accepted the proposition contained in the instrument through its secretary and treasurer, and the acceptance was approved by E. S. Eipple, the secretary, treasurer and general manager of the plaintiff. Correspondence subsequent to the making of the contract and conversations between the parties prove beyond all doubt that the defendant was a principal to the contract and not an agent of the Hotel Theodore Corporation. The defendant, in its brief, concedes that it executed the contract.

The defendant contends that “the plaintiff’s demurrers to the defendant’s additional and amended pleas should have been overruled.” These pleas alleged, in substance, that there had been pending, in the superior court of Cook county, a proceeding in chancery in which the Chicago Title and Trust Company had filed its bill for foreclosure against the Hotel Theodore Corporation and others for the purpose of foreclosing a certain trust deed which constituted a lien upon the premises of' the Hotel Theodore Corporation; that the plaintiff had filed its intervening petition in the cause, had made the defendant a party to this petition and had procured summons to issue; that the defendant entered its appearance in the proceedings and became a party thereto; that in the petition the plaintiff alleged that it was a subcontractor and sought to impress a lien upon the premises in question, and that the basis of the claim of the plaintiff in said petition was the contract sued on in the instant case. In the first plea the defendant alleges res judicata, and in the second estoppel by verdict. There is no merit in the instant contention. It appears from each of the special pleas that before evidence was taken as to the foreclosure suit and the intervening petition of the plaintiff, “said intervening petition of Roekwood Sprinkler Company was by stipulation dismissed as to the defendant, The Phillips Company, without prejudice. ’ ’ The plea further recites that the decree in the foreclosure matter dismissed the intervening petition of the plaintiff for want of equity and that no appeal or writ of error was taken from the decree. The defendant was not a party to the decree. A mechanic’s lien proceeding is in the nature of a proceeding in rem. The proceeding, under the statute, is additional or cumulative of such other remedies for the enforcement of the contract out of which the lien arises, as the party may have either against the person or property. Independently of the lien given by the statute, a creditor may enforce his contract- in any appropriate common law action, but can have one satisfaction only. (See Delahay v. Clement, 4 Ill. 201; West v. Flemming, 18 Ill. 248; Templeton v. Horne, 82 Ill. 491; Erikson v. Ward, 266 Ill. 259; Olson v. O’Malia, 75 Ill. App. 387.) It is obvious that the mere fact that the plaintiff failed to enforce a mechanic’s lien against the property would not bar the instant action. Further, it appears that the defendant was dismissed from the mechanic’s lien proceeding, by stipulation and “without prejudice,” and was not a party to the decree, and therefore is not in a position to claim any benefit from the decree.

The second additional special plea asserts estoppel by verdict. “An estoppel by verdict is but another branch of the doctrine of res judicata, and it rests upon the same principle of law, — that is, that a matter once litigated between parties to a final judgment in a court of competent jurisdiction cannot again be controverted. When this doctrine is applied to a single question- or point arising in the course of litigation which has finally been adjudicated it is designated as an estoppel by verdict, and the same question or point cannot again be litigated between the same parties in the same or any other court at law or in chancery, and neither party, nor their privies, will be permitted to allege anything inconsistent with the finding upon that question.” (Citing authorities.) (Chicago Title & Trust Co. v. National Storage Co., 260 Ill. 485, 493.) To assert estoppel by verdict it must appear that the defendant could have been prejudiced by a finding in the mechanic’s lien proceedings. “The doctrine of res judicata is, that a point once adjudicated by a court of competent jurisdiction may be relied upon as conclusive upon the same matter, as between the parties or their privies, in any subsequent suit, in the same or any other court, at law or in chancery. But the doctrine has no application against or in favor of anyone not a party or privy. No one not a party to the judgment can claim the benefit of it.” (Citing authorities.) (People v. Amos, 246 Ill. 299, 303. See also First Nat. Bank of Peoria v. Peoria Watch Co., 191 Ill. 128.) But the defendant argues that it should be considered as a privy of the Hotel Theodore Corporation and that therefore the plea of res judicata and also the plea of estoppel by verdict should be sustained. We have examined carefully the strained argument in support of this contention and we find it without merit. The, defendant argues that if the instant judgment is affirmed and the defendant should seek to recover against the Hotel Theodore Corporation under its contract with that corporation the Hotel Corporation might be indirectly deprived of its “solemn adjudication” against the plaintiff in the foreclosure proceedings; that if the instant judgment is sustained and the defendant pays it, it would become the owner of the sprinkler system and entitled to replevin it from the Hotel Corporation and in such a proceeding the latter would be deprived of the benefit of its judgment obtained against the plaintiff in the mechanic’s lien proceedings. This argument can hardly be taken seriously. The defendant has its independent contract with the Hotel Corporation, and in a proceeding under it the relation between the plaintiff and the defendant under the contract in the instant case would not be a pertinent issue.

The défendant next contends that its motion for a directed verdict at the close of all the evidence should have been allowed. In support of this contention the defendant first argues that the instrument sued on imposes no obligation on the defendant to pay plaintiff for the sprinkler system. As we have heretofore stated, the defendant, in its plea, admits that it was a party to the contract, and a number of facts and circumstances in evidence show beyond all doubt that it recognized that it was a principal to the contract and bound by its provisions. The last sentence of the contract is as follows: “Your acceptance, when approved by an Officer of this Company, will constitute a contract between us.” The instrument was signed by the plaintiff and bore the acceptance of the defendant company, by B. E. Phillips, its secretary and treasurer, and it bears the stamped approval of R. S. Ripple on behalf of the plaintiff. Under date of August 9,1924, the defendant wrote the following: “For our guidance in the matter of payments to you, etc., we would appreciate your scheduling approximately when you expect the materials will be shipped and. about when you think it will be finished.” Under date of February 24, 1925, in a letter sent to the plaintiff, the defendant said: “Referring to our contract with you for sprinkler equipment on the Hotel Theodore property ... it is our understanding that you desire to accept payment of $3,850.00 direct from our customers, the Hotel Theodore Corporation, in securities other than cash, and this is to advise you that our contract with you will not be jeopardised in any way, nor will the contract be invalidated in any manner by your accepting this payment direct from the Hotel Theodore Corporation, and that %oe are charging your account with the sum of $3,850.00 as payment by our customers direct to you, and would ask you to credit our account in this sum.” The body of the contract was a printed form that was used by the plaintiff in the conduct of its business. In the printed text the word “owner” appears instead of the name of the defendant, and the defendant argues from this fact that the contract does not require it to do anything and that the word “owner” might have been intended to refer to the Hotel Corporation. This argument is without the slightest merit. When the entire instrument is read in the light of documentary and oral evidence, which shows clearly that the defendant always regarded itself as a principal to the contract, the patent error in leaving the word “owner” in the contract cannot aid the defendant. In a further effort to escape the effect of the judgment the defendant seeks to argue, in this court, that in signing the contract it acted as the representative or agent of the Hotel Corporation. It is sufficient to say, in answer to this argument, that neither by plea nor by evidence did the defendant raise such a point in the lower court. Not only by its plea did the defendant admit that it was a principal to the contract, but in the evidence offered by it in support of its claim that the plaintiff and the defendant abandoned the contract by mutual consent, its officer admitted that the contract was entered into by the defendant. The defense of abandonment of the contract is based upon the theory that the defendant was a principal to the contract.

Another argument in support of the instant contention is that the evidence offered by the plaintiff is insufficient to establish performance under the terms of the contract. There is no merit in this contention. The plaintiff made- out a clear prima facie case in this regard and the absence of merit in the defense to this action is clearly shown in this, that the defendant did not offer a scintilla of evidence in rebuttal of the same. If the sprinkler system had not been installed, or if it had not been installed in accordance with the terms of the contract, it would have' been an easy matter for the defendant to have offered proof in that regard. It did not do so.

The defendant next contends that “the trial Court erroneously admitted improper evidence offered by the plaintiff.” It first argues that “plaintiff’s Exhibits 1 to 11, inclusive, were improper under the issues.” The point made is that the instrument sued on imposed no' obligation on the defendant to pay the plaintiff for the sprinkler system installed on the premises of the Hotel Theodore. We have heretofore disposed of this contention.

The defendant next contends that the court erred in admitting certain evidence offered by the plaintiff to prove performance by it under the contract. It is unnecessary for us to follow the labored argument of the defendant in support of this contention. That the plaintiff made out a prima facie case of performance by competent evidence is clear, and as the defendant failed to offer any proof in rebuttal of this evidence, it follows that even if the court admitted improper evidence bearing upon that issue such action would not constitute reversible error.

The defendant next contends that “the trial Court refused to admit proper evidence offered by the defendant.” The defendant claims that its exhibits "numbers 26, 29 and 30 were erroneously excluded. These were self-serving declarations and the ruling of the court was proper. Defendant’s exhibit 6 for identification was properly refused because it contained ■no statements or admissions that were relevant to the issues. The defendant offered in evidence certified copies of orders that related to the matter of the receivership of the Hotel Theodore property in the foreclosure proceedings. The court did not err in excluding the offered evidence. The defendant also contends that the court erred in excluding certain correspondence “between the Challenge Company, Hotel Theodore Corporation and the Phillips Company.” It is sufficient to say in answer to this contention that the defendant admits, as it must, that the letters contained in the correspondence were not binding upon the plaintiff “or that they proved or tended to prove the statements therein contained.” As we understand the argument of defendant its position is that these letters were admissible as part of the res gestae, but it is plain that they were not. The defendant next contends that the court erred in excluding certain conversations between B. E. Phillips and Heim, the former president of the Hotel Corporation. As it is conceded that no one representing the plaintiff was present at the conversations, the ruling of the court was clearly proper. The sole argument of the defendant is that “since the Thaw case we had thought it fairly well understood that such testimony under such circumstances was competent.” We are at a loss to understand just what the counsel means by this argument.

The defendant next contends that the court erred in refusing to allow it to offer evidence to the effect that the Hotel Corporation never paid the defendant any money in connection with the sprinkler instalment, and it insists that this testimony was competent as tending to sustain its claim that the contract had been aban-" doned. The contention is, of course, without the slightest merit.

The defendant next contends that “the trial Court erroneously and improperly sustained objections to-the argument of defendant’s counsel.” This contention is without the slightest merit. The record shows that only one objection was made by counsel for the plaintiff during the argument of the counsel for the defendant. The latter was attempting to argue to the jury that they had a right to infer what was contained in several letters written by the defendant, but which had been excluded from the evidence. The action of the court in sustaining the objection to such an argument was, of course, a proper one.

.The defendant next contends that the court erred in giving to the jury plaintiff’s instruction number 2, and argues that the instruction “cast upon the defendant the burden of proving by a preponderance of the evidence the agreement of cancellation, and directed a verdict unless "this was done,” arid the defendant argues that the burden of proof on this issue was upon the plaintiff. There is no merit in this contention. The defendant, by its special plea, alleged that the written contract had been abandoned by an oral agreement between the plaintiff and the defendant. The plaintiff filed a replication to this plea. This was an affirmative defense and the burden was upon the defendant to prove it. There was nothing in writing relative to the alleged abandonment or cancellation. “Parties to a written contract may not only modify it' orally but may rescind it in the same manner, although evidence of rescission of a written contract by a subsequent parol agreement must be clear, positive and above suspicion. (6 R C. L. par. 306, p. 922.) Where an abandonment or waiver is relied upon, it must be shown to have been the clear intention of the parties to abandon the contract previously entered into. Courts will indulge no presumptions in favor of a waiver of a contract where specific performance is attempted to be enforced, nor will a waiver or abandonment be inferred upon slight proof. A parol waiver or discharge of a written contract must be clear and explicit and be proved beyond a doubt. (Evans v. Gerry, 174 Ill. 595.) The burden of establishing a rescission of the ivritten contract ivas upon appellees. Rae v. Klotter, 329 Ill. 59; Supreme Tent K. O. T. M. v. Stensland, 206 id. 124.” (Selman v. Geary, 334 Ill. 642, 650. Italics ours. See also Frankenfield v. Ross, 328 Ill. 487, 493 ; Voris v. McIver, 339 Ill. 340, 348.) The defendant contends that the instruction was erroneous in that it “requires the defendant to show that it was the ‘mutual intention’ of the parties to cancel the contract.” Obviously there is no merit in this contention.

The defense of abandonment or cancellation was really the only one, upon the merits, made by the defendant. At the request of the defendant the court submitted to the jury the following interrogatory: “Do you find from the evidence in this case and under the instructions of the court that on or about the 25th or 26th of February, 1925, an agreement was made between plaintiff and defendant to abandon the contract sued upon in this case? If you find in the affirmative you will answer yes, all the jurors signing their names, and if you find in the negative you will answer no, all the jurors signing their names.” The answer to this interrogatory was, “No.” The defendant filed a motion for a new trial, setting up a great many grounds for a new trial, but it made no specific objection to the special finding nor did it file any motion to set aside the special finding. “It has been held by this court that the defendant is conclusively bound by a special finding of fact such as is here involved unless error has been assigned thereon and the question has also been raised on the motion for a new trial. (Avery v. Moore, 133 Ill. 74; Pennsylvania Coal Co. v. Kelly, 156 id. 9; Empire Laundry Machinery Co. v. Brady, 164 id. 58; Voigt v. Anglo-American Provision Co., 202 id. 462.) No motion was made by plaintiff in error to set aside this special finding of fact in the trial court nor was any error assigned thereon, either in the Appellate Court or this court. It is, however, contended here that the question was preserved by motion made by plaintiff in error in the trial court requesting that court to direct a verdict for plaintiff in error, and was also preserved in the motion for new trial by the general objection that the verdict was contrary to the weight of the evidence. Under the rulings of this court neither of these points can be sustained. . . . It is also argued by counsel that the general objection in the motion for a new trial that the verdict was contrary to the weight of the evidence was sufficient to question the validity of the special finding. We agree with the argument of counsel for plaintiff in error that a special finding is no more binding upon plaintiff in error than is the general verdict. The plaintiff in error is entitled to raise the correctness of a special finding on motion for a new trial, and may also take an appeal from the ruling of the trial court thereon. (Illinois Steel Co. v. Mann, supra.) But the objection to the special finding must be specific, and it is not sufficient to simply raise the question by a general objection that the verdict is contrary to the weight of the evidence.” (Brimie v. Belden Mfg. Co., 287 Ill. 11.)

The defendant contends that the court erred in giving to the jury plaintiff ’s instruction number three. This instruction relates to the elements that a jury might take into consideration in determining ■ the weight to be given to the testimony of the witnesses. The defendant contends that it omitted the element that bears on the intelligence or lack of intelligence of a witness. If it be conceded that the instruction was lacking in this regard the defect was entirely cured by the defendant’s fourth instruction, which informed the jury fully as to the various elements that they might take into consideration in determining the credibility of a witness. The defendant contends that the court erred in giving plaintiff’s instruction number four, which was a stock cautionary instruction. There is not the slightest merit in this contention.

The defendant contends that “the trial Judge by his manner of ruling, comments, remarks and demeanor, erroneously and improperly prejudiced the jury against the case of the defendant.” It states that “the record does not fully show the attitude of the trial Court.” It seems to be the position of the counsel for the defendant that he may permit statements of the trial court to go unchallenged and then on review claim they are prejudicial. He complains that the court made a certain statement in the presence of the jury and the record shows that it was not made in the presence of the jury. Even where the court ruled with the defendant the counsel seeks to argue that the court’s manner of ruling’ prejudiced the defendant, although the able counsel did not seem to entertain that view at the time the court made his rulings. We have carefully examined the record in reference to the contention and we find that the instant complaint is entirely unwarranted. It is quite significant that the able counsel for the defendant made no objection to any of the remarks or comments of the court of which he now complains. In order to base assignments of error upon alleged improper remarks by the court, it must appear from the record that objeetions were made at the time. (Chicago City Ry. Co. v. Carroll, 206 Ill. 318; Public Service Co. of Northern Ill. v. Leatherbee, 311 Ill. 505, 508; People v. Abrams, 249 Ill. 619, 621; People v. McLaughlin, 337 Ill. 259, 264.) However, we have carefully examined the record and we are satisfied that the defendant had a fair trial.

The defendant contends that “the verdict is against the weight of the evidence.” We find no merit in this contention, and, as we have heretofore stated, the only material question of fact that was controverted relates to the alleged abandonment or cancellation of the contract.

The judgment of the superior court of Cook county is a just one and it should he and it is affirmed.

Affirmed.

Gtridley, P. J., and Keener, J., concur.


text:
    The County of Lake, State of Illinois, for the Use of F. H. Dickson, Appellee, v. Southern Surety Company, Appellant.
    Gen. No. 35,049.

      Heard in the second division of this court for the first district at the April term, 1931.
    Opinion filed February 23, 1932.
    Cassels, Potter & Bentley, for appellant; Ralph F. Potter and Earl D. Hostetter, of counsel.
    Schroeder & Metzger, for appellee; Werner W. Schroeder, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

This is an action in debt brought for the use of F. H. Dickson, upon the bond of a road contractor who contracted to build a section of road in Lake county, Illinois. The claim of Dickson, hereafter called the plaintiff, is for $1,825.04 due him from the contractor for groceries and meats furnished to the latter. In a trial by the court there was a finding that the defendant, Southern Surety Company, a corporation, owes the plaintiff, in debt, $112,438.44, and the plaintiff’s damages were assessed at $1,825.04. The defendant has appealed. By stipulation the court in the same hearing also tried the case of The County of Lake, State of Illinois, for use of F. H. Dickson v. Massachusetts Bonding and Insurance Company, as surety upon a bond relating to another section of the same road. The two cases involve similar bonds and facts, and the same questions of law. A judgment was entered against the defendant in the second case, from which it prosecutes a separate appeal (265 Ill. App. 600 [abst.]). Here the two cases have been considered together.

The principal question presented is whether groceries and meats furnished to a road contractor engaged in the construction of a public highway in Illinois, and which were used and consumed in a cook house and mess hall maintained by the contractor for the boarding of laborers employed on the road, were covered by a statutory contractor’s bond furnished by the defendant. The pertinent provisions of the bond are: “. . . Fred C. Nelson ... as principal, and The Southern Surety Company, as surety, are held . . . unto the County of Lake. . . . The condition of the foregoing obligation is such that whereas said principal has been awarded the contract . . . for the construction of a State road in Lake County . . . whereby said principal has promised ... to pay all sums of money due for any labor, material, apparatus, fixtures or machinery furnished to such contractor for the purpose of such construction or improvement, . . . and has further agreed that this bond shall inure to the benefit of any person to whom any money may be due for any such labor, material, ... so furnished and suit may be maintained on such bond by any such person for the recovery of any such money. ... If said Fred C. Nelson . . . shall pay all sums of money due for any labor, material, apparatus, fixtures or machinery furnished to him .for the purpose of such construction or improvement . . . then this obligation to be void, otherwise to remain in force and effect.”

Plaintiff’s statement of claim alleges {inter alia) that it was necessary for the contractor to maintain á commissary for the boarding of his laborers; that the region where the work was done was sparsely populated and the communities in the vicinity were not equipped with hotel, restaurant or boarding accommodations of a nature suited to furnish meals to the laborers employed in the work and that it was imperative for the contractor to make his own arrangements for furnishing meals in order to obtain laborers to do the work required by the contract and the bond, and that the groceries and meats were used in a cook house and mess hall and were wholly consumed by laborers engaged in the prosecution of the work; that the contractor employed the laborers through employment agencies and had an agreement with the agencies and the laborers to furnish the latter board and lodging, and for which he was to deduct a dollar per day from each laborer’s wages; that had the contractor not conducted the commissary it would have been impossible for the laborers to obtain food and, consequently, it would have been impossible for the contractor to obtain laborers to do the work required by the contract, and that the boarding camp was not maintained for profit or as an independent enterprise. Plaintiff contends that his evidence supports these allegations, and further contends that groceries and meats furnished to the contractor under such' a state of facts are “materials” within the meaning of the statute and the bond.

The defendant contends that the bond does not cover provisions and supplies such as groceries and meats, or materials of any kind that are not for the purpose of the improvement itself; that supplies which are used in the process of construction as a means for assisting in the doing of the work and that do not go into and become a part of the completed improvement, are not within the “scope” of such a bond; that the bond is statutory and the words used therein 1 ‘ are the essence of the undertaking as to the rights of third party materialmen, ’ ’ and that groceries and meats do not become an integral part of a concrete road; that the element of alleged necessity, if any existed, of boarding the laborers, is wholly immaterial and is not the test of liability upon the bond, but that even if the said element can be given consideration where special circumstances exist, “there is not on the facts and law in this case such degree of indispensability to the purpose of the improvement as to give rise to the kind of necessity that is contemplated by the authorities . . . upon which the plaintiff seeks to rely.” The parties agree that the precise question before us has not been passed upon by the Supreme Court nor the Appellate Courts of this State.

In 1921 and. 1922 the county of,Lake awarded contracts for the improvement óf State Aid Route No. 8 (now State Highway No. 60), which extends from the south county line in a northwesterly direction through the villages of Lake Zurich and Wauconda, and from thence to Volo. The road was divided into three sections, designated, respectively, as Section S-15d, Section T-15d and Section 0-15d. Section S extended from the south county line to the main corners of Lake Zurich; Section T between Lake Zurich and Wauconda, and Section 0 between Wauconda and Volo. There was a separate contract as to each section but all were awarded to Nelson, a road contractor. The provisions of the contracts are not contained in the record. Nelson furnished a separate contractor’s bond as to each section. Massachusetts Bonding & Insurance Company was the surety bn the bond for Section S, Iowa Bond'ing & Casualty Company for Section 0, and the instant defendant for Section T. Each bond was on a printed form prescribed by the Department of Public Works and Buildings and made in compliance with section 26 (6), of “An Act to Revise the Law in Relation to Roads and Bridges, ’ ’ approved June 27, 1913; in force July 1, 1913. Cahill’s St. ch. 121, 1f 30.

The plaintiff concedes that his statement of claim is drafted to accord with the well known case of Brogan v. National Surety Co., 246 U. S. 257, and he contends that case applies to the instant question and is decisive of it. The defendant contends that case does not apply to any case under the Illinois statute, but that even if it did, it would not aid the plaintiff because he has failed to prove facts which would bring" his claim within the rule laid down in that case. The Brogan case was an action upon a bond given under the federal statute relating to the construction of public works. The contract and the bond bound the contractor to “make full payment to all persons supplying him with labor or materials in the prosecution of the work provided for in” the bond. To quote from the opinion: “The facts undisputed or as found by the lower court and accepted by the Court of Appeals were these: The Standard Contracting Company undertook to deepen the channel in a portion of St. Mary’s River, Michigan, located ‘in a comparative wilderness at some distance from any settlement. There were no hotels or boarding houses’ and the contractor ‘was compelled to provide board and lodging for its laborers. ’ Groceries and provisions of the value of $4,613.87, furnished it by Brogan, were used by the contractor in its boarding house; and were supplied ‘in the prosecution of the work provided for in the contract and the bond upon which this suit is based. They were necessary to and wholly consumed in such work. ’ The number of men employed averaged 80. They were ‘boarded’ partly on the dredges, partly in tents supplied by the contractor; all under an arrangement made with the labor unions— by which the contractor was to board the men and deduct therefor $22.50 a month from their wages. . . . The supplies furnished by Brogan under these circumstances were clearly used in the prosecution of the work, just as supplies furnished for the soldiers’ mess are used in the prosecution of war. . . . The Circuit Court of Appeals deemed immaterial the special circumstances under ivhich■ the supplies were furnished and the findings of fact by the trial court that they were necessary to and wholly consumed in the prosecution of the work'provided for in the contract and bond. In our opinion these facts are not only material, but decisive. They establish the conditions essential to liability on the bond. . . . Groceries furnished to a contractor under such circumstances and consumed by the laborers, are materials supplied and used in the prosecution of the public work.” (Italics ours.) The federal act provided that recovery could be had by the persons who “furnished labor or materials used in the construction or repair” of the work. The decision is clearly based upon the theory that it was indispensable to the prosecution of the public work in question that the contractor supply board to the laborers engaged in the performance of the work, that “groceries furnished to a contractor under such circumstances and consumed by the laborers, are materials supplied and used in the prosecution of the public work,” and that 'under the special facts of the case “the furnishing of board by the contractor was an integral part of the work and necessarily involved in it.” Three justices dissented from the opinion of the majority. That case establishes the law in relation to the federal act and a bond given under it.' In National Surety Co. v. United States, 228 Fed. 577, which was reversed by the Supreme Court in the Brogan decision, the Circuit Court of Appeals said (p. 583): “The Brogan claim was for groceries furnished to the contractor’s hoarding house. We cannot attach any importance to the fact that the character of the country where this work was done made it necessary for the contractor to hoard its men on the job — in other words, compelled it to give them their board as a part of their pay for their work. Even if there may be distinctions between one who furnishes food consumed by the men in their contractor’s boarding house and food consumed by the same men in an outside boarding house, it is not seen how it can be of any importance whether the men agree to board at the contractor’s place, because it is the only one, or do so for some other reason; nor can there be one rule in a city and another in a wilderness. The provisions, in one case as in the other, either are or are not ‘labor’ or ‘materials' xised in the construction of the work.” (Italics ours.)

After the decision of the Supreme Court in the Brogan case the Circuit Court of Appeals, Third Circuit, decided the case of Delaware Dredging Co. v. Tucker, 25 F. (2d) 44, wherein a contractor contracted with the United States to excavate a channel in the Delaware river. Mud scows were used in the work and the plaintiff sued to recover for meals furnished the scowmen while engaged in the work. The bond was conditioned for payment to all persons supplying the contractor with “labor or materials in the prosecution of the work.” The court states (p. 46) that while the Supreme Court has refused to limit the application of the act to materials directly incorporated into public work, nevertheless, “there must be special circumstances showing that the furnishing of board was indispensable to and an integral part of the work and necessarily involved in it, before it can be said that meals and board are materials furnished ‘in the prosecution of the work. ’ United States v. Kimpland (C. C.) 93 F. 403; Brogan v. National Surety Co., 246 U. S. 257, 261, . . . Here there were no special circumstances, showing that the men were engaged in work located ‘in a comparative wilderness,’ far from any settlement, so that the laborers had to be boarded there. There is nothing to show that the furnishing of these scowmen with meals was indispensable to the work, formed an integral part of it, or was necessarily involved’ in it. It follows that the plaintiff is not entitled to the $69.67 for furnishing meals to the scow-men of the canal company.”

The federal act and a bond given under it were before the court in United States v. Fidelity & Deposit Co. of Maryland, 169 Ill. App. 1, and it was there held, in an'able opinion, that feed furnished for the teams of a contractor was not included within the statute and the bond. ' While this decision was rendered before the Brogan case and is, therefore, not now the law, nevertheless, the reasoning and conclusion of the court are helpful to us in passing upon the vital question before us. In United States v. Lowrance, 236 Fed. 1006 (decided before the Brogan case), the court held that feed for animals did not fall within the bond under the federal act, and it was said (p. 1008): “The only reported case which the court has been able to find in which the identical question was determined by any court under this act of Congress, and that was the act of 1894, is United States v. Fidelity & Deposit Co., 169 Ill. App. 1. In that case it was held, in a very carefully prepared opinion, reviewing numerous authorities, that such articles are not materials furnished in the prosecution of the work, within the meaning of this statute, and therefore no liability on the bond for them.” In Wiss v. Royal Indemnity Co., 219 Mo. App. 568, 584, decided after the Brogan case, the court, in passing upon a bond given under the Missouri statute, also quotes with approval United States v. Fidelity & Deposit Co. of Maryland, supra. The Minnesota statute requires that a bond be given for the use of “all persons doing work or furnishing skill, tools, machinery or materials under, or for the purpose of such contract,” and in Westling v. Republic Casualty Co. of Pittsburgh, 157 Minn. 198, the court held that under the statute “groceries and meats are not included in the word ‘materials’ and hence defendants cannot be held liable therefor.” The court states that it refuses to follow the doctrine of the Brogan case, as in its opinion, meats and groceries could not be “materials” within the Minnesota statute under any state of facts. In the later case of Standard Oil Co. v. Remer, 170 Minn. 298, which was also an action on the bond of a road contractor and involved a claim for groceries consumed by laborers in the camp of the contractor, it appeared that the work was performed “in a comparative wilderness, the .nearest settlement being ten to twenty miles away from different portions of it, that there were no boarding houses or hotels sufficient to house and feed the men within a reasonable distance, and that it was necessary for the contractor to erect and maintain camps, and purchase and supply provisions for the men on the work,” but the court adhered to its ruling in Westling v. Republic Casualty Co., supra. In Wiss v. Royal Indemnity Co., supra, the court held that feed sold and delivered to subcontractors which was used by them in feeding mules used in the construction of the highway was not “material” that was “used in such work” within the terms of the bond, even though the feed was consumed by the teams used by the contractor in doing a part of the work. The Missouri statute prescribes that the “successful bidder shall enter into a bond . . . conditioned for the faithful performance of the contract, . . . and the payment for all materials and labor furnished and performed in the completion of said contract and giving the right of action to materialmen and laborers for materials furnished and labor performed under said bond. . . . ” In an exhaustive opinion the court said: ‘1 Our view is not shaken by the Federal cases cited by respondent. (Brogan v. National Surety Co., 246 Fed. Rep. 257; U. S. v. Lawrence, 252 Fed. Rep. 122.) These cases must be viewed in the light of the Federal Statute, . . . which provides that any person contracting for any public work shall execute a penal bond that the contractors shall pay for not only labor and material that go directly into the completed structure, but for all labor and material furnished em the prosecution of the work provided for in such contract.’ It is at once apparent that the language of the Federal Statute is much broader than that of conditions of the bond before us and of our Missouri statutes, and is in fact broader than many of the Mechanics’ Lien Acts of the several states.” The court also holds that certain cited decisions of other states are readily distinguishable from the case before it by reason of the difference in the language of the statutes. Lillard v. Royal Indemnity Co., 219 Mo. App. 584, was an action on a. road contractor’s bond for groceries and provisions furnished and used in a camp to board the laborers, and the decision follows the ruling in Wiss v. Royal Indemnity Co., supra. Courts of other states, in interpreting their statutes, have also refused to follow the Brogan case. The Brogan case is not binding upon us in the instant case, and we agree with the three justices who dissented in that case. Notwithstanding our high respect for the decisions of the federal Supreme Court, we feel constrained to say that the doctrine of the Brogan case appears to be an example of the old legal maxim that “hard cases make bad law.”

But even if we should assume that the doctrine of the Brogan ease is properly applicable to the Illinois statute and a bond given under it, where certain special circumstances are present, nevertheless, we would be compelled to hold that the plaintiff has not proven such a case as entitles him to the benefit of that doctrine. The road is located in the southwestern part of Lake county, Illinois. The section covered by the bond extends from Lake Zurich to Wauconda, a distance of about five and one-half miles. A circle with a radius of 20 miles and with the crossroads in Lake Zurich as its center, had about 50 villages, towns and cities within it. The population of these villages, towns and cities, in 1920, was 110,520. The record does not disclose the rural population, but it does show that the lands outside of the villages, towns and cities were used for farming purposes, with the exception of that around the lake, where there were hotels and boarding houses used as summer resorts. Lake Zurich is about 35 miles from the city limits of Chicago on the north; about 17 miles from Waukegan, North Chicago and Elgin; less than 10 miles from Libertyville and Arlington Heights, and approximately five miles from Barring-ton, Palatine and Wauconda. Elgin had a population of 30,000, Waukegan about 20,000, and Lake Zurich 500. The eastern portion of Lake county is an industrial section. The plaintiff endeavored to bring himself within the rule of the Brogan case, but in our opinion he failed to do so. His principal evidence may be briefly stated as follows: The contractor employed only a few local laborers and most of the workmen were secured through labor agencies located at Canal and Madison streets in Chicago. The men “were just common laborers picked up from Chicago streets” and were taken by the contractor to the place of the work. He agreed with the labor agencies and the men to provide their meals and lodging. Most of the men were of a type that many people would not care to take into their homes and.“it seemed a much better arrangement to have a camp for the men to come and get their meals, their bunks are there and if those bunks happen to get lousy you haven’t got a quarrel with somebody that has a home there.” There was opinion evidence to the effect that there was not an ample supply of labor in Lake county at that time; that while it was not impossible to obtain some laborers there, of the type required, it was impossible to get a sufficient number; that while there were groups of common laborers at North Chicago it was not “practical” to. get labor from the industrial districts. An important witness for the plaintiff testified that he did not “think common labor could have been gotten in a practical way to do the work on these roads from the industrial districts around Waukegan or North Chicago or from the farms”; that during the spring and summer the farmers were busy in their farm work. The work in question was done between October 5 and November 24. The proof of the plaintiff that it was necessary and indispensable to the construction of the road that camps and commissaries be maintained to feed the laborers, was by means of opinion evidence, which was received over the objection of the defendant, and should not have been admitted. It is apparent, even from the testimony of the plaintiff, that the contractor made little, if any, effort to secure laborers living in Lake county. He did not advertise in any of the local papers for labor, nor did he post any notices that labor was needed on the work. There was evidence that there were a number of hotels and boarding houses located at Wauconda and Lake Zurich and while most of them were summer resort places that did not cater to common laborers, nevertheless, the work was done in the fall of the year when the summer season had closed, and Nelson states that he did not inquire at the hotels or boarding houses in Lake county to learn if the men could be boarded there, because “the class of men that we got are an undesirable class as tenants.” Even from the statement of claim, it appears that Nelson furnished the men with board and lodging because of Ms agreement with the employment agencies and the laborers that he would furnish the latter with board and lodging. He admitted that when he engaged the men he contracted to board them, and that at that time he had not made any inquiries as to whether he could obtain local labor, nor as to whether laborers could be boarded in the vicinity of the work. The average crew working on a section consisted of 60 men, of whom 15 were skilled workmen, and it seems idle to contend that in the fall of the year the plaintiff could not have secured 60 laborers from the neighborhood. Of 14 contractors who did work in Lake county between the years 1919 and 1924, one, and possibly two, did not maintain boarding places and sleeping quarters for their men. That it may have been cheaper, more convenient, advantageous and practical for the contractor to furnish meals for the men may be conceded, but, in our opinion, it cannot be reasonably argued, from the facts, that the furnishing of food was indispensable to the prosecution of the work and formed an integral part of it, or was necessarily involved in it, within the meaning of the doctrine announced in the Brogan case. In Delaware Dredging Co. v. Tucker, supra, the plaintiff presented a stronger case of necessity than has the instant plaintiff, but the United States Circuit Court of Appeals held that it did not come within the doctrine announced in the Brogan case and refused to allow the claim. When Nelson defaulted upon the contract and the defendant took it over, it hired Nelson “to go ahead with the physical end of the work and he had the same working agreement with the labor agents in Chicago to furnish the labor that he had prior to the time that the surety company took over tMs work.” A witness for the plaintiff testified that a representative of the Massachusetts Bonding Company and the defendant agreed to allow Nelson to conduct the bunk house and camp as he had previously done and to buy supplies from the plaintiff. These supplies were paid for and they form no part of the instant claim. It is obvious that the defendant was not in the business of road construction. Nelson, at the time, had a “nucleus organization,” and the representative of the defendant concluded that "it was the practical thing to have Nelson continue the work in his own way. It also appears from the evidence of the plaintiff that this representative was endeavoring to save money in the matter of finishing the contract. We cannot agree with the contention of the plaintiff that the defendant’s action in sanctioning the feeding and boarding of the men proves that the maintenance of a boarding camp was indispensable to the prosecution of the work.

The plaintiff contends, however, that certain cases show a tendency to relax the rule of the Brogan case, and to allow claims for groceries furnished to a contractor even where the necessity for the maintenance of the camp is not alleged or proved. Delaware Dredging Co. v. Tucker, supra, clearly indicates that there is no such tendency in the federal courts. As to the cases cited by the plaintiff in support of this last contention: In Union Indemnity Co. v. State, 99 Fla. 656, 127 So. 307, the statute required the contractor to make payments to all persons supplying him or them “labor, materia] and supplies used directly or indirectly in the prosecution of the work,” and the opinion states that the Florida statute is broader than the federal statute interpreted in the Brogan case. In West v. Detroit Fidelity & Surety Co. (Neb.), 225 N. W. 673, 674, the bond was conditioned that the contractor “shall pay for all labor, equipment, gasoline, oils, materials and supplies used or employed on said contract.” In Union Indemnity Co. v. Handley (Ala.), 124 So. 876, the bond provided that “the contractor agrees that he will pay all sums which may be due for labor in the performance of this contract, and for materials and supplies used in its performance as the same become due.” We may add that the Alabama court held that not only food furnished the laborers, but also clothing, tobacco and cigarettes furnished them came within the provision of the bond. In McElrath & Rogers v. W. G. Kimmons & Sons (Miss.), 112 So. 164, wherein the court allowed a claim for groceries furnished the subcontractors for a camp which they ran for the purpose of boarding their hands, the decision, apparently, is based upon the Brogan case, for it states that “the proof showed that there were no negroes with whom the negro laborers could obtain board, and it was necessary, in order to perform the contract, to maintain a place at which they could be fed; their board being a part of their compensation for the work. Ordinarily, supplies for a camp or a commissary would not be allowed, but, under some conditions, it is proper to allow the actual cost of the board furnished the laborers as a part of their compensation.” In National Surety Co. v. Arizona Grocery Co., 32 Ariz. 399, 259 Pac. 404, the condition of the bond was that “if the said contractor . . . fails to pay all moneys due or to become due for or on account of any materials or property so furnished in the said work or improvement, or the performance thereof, . . . the said surety will pay the same ...” and it is was held that under this bond there might be a recovery for groceries consumed by workmen on the job. The opinion states: “It appears from the undisputed testimony there was no other place near the work where the men could board, and they would have been forced either to board themselves, or the contractor would have had to provide a boarding place, and he could not, according to his testimony, obtain sufficient men to work on the job unless he provided a messhouse.” The court cites the Brogan case in support of its ruling. It is not necessary to consider American Surety Co. v. Dick Co., 23 F. (2d) 464, as the plaintiff concedes that “the bond in that case was very broad in its scope.” In fact, it was even broader than the statute of New Mexico required, but the court held that the obligation of the surety was determined by the language of the bond. In Carter County v. Oliver-Hill Const. Co., 143 Tenn. 649, 228 S. W. 720, the court quotes practically the entire opinion in the Brogcm case and states that it approves what is therein said, and in a later case, Southern Const. Co. v. Halliburton, 149 Tenn. 319, 342, the court, in disallowing a claim for groceries furnished the contractor and used by the latter in the camps where his laborers were fed, said: “It does not appear that it was absolutely, necessary for Halliburton to have undertaken to feed his laborers himself. This may have been- done for additional profit. - The laborers might have been boarded elsewhere. This work was not being done in a wilderness, as in Brogan v. National Surety Co., 246 U. S. 261 .... Approved in Carter Co. v. Oliver Hill Construction Co., supra. At any rate, as we said in Cass v. Smith, supra (146 Tenn. 218), we do not desire to extend the scope of Carter Co. v. Oliver Hill Construction Co.” In Bricker v. Rollins & Jarecki, 178 Cal. 347, 173 Pac. 592, the bond provided that “if said principals as contractors in said contract fail to pay for any materials or supplies furnished for the performance of the work contracted to be done in and by said contract, or for any work or labor done thereon of any kind, said surety will pay the same, ’ ’ etc. While the court cites the Brogan case in support of its ruling that flour, meat, etc., were “supplies” within the meaning of the California statute, it adds that “as to this class of claims a less difficult question is presented, arising out of the broader meaning to be given to the word ‘supplies,’ as used in the statute and bond.”

The defendant contends that food supplies are not embraced in the Illinois statute nor the instant bond. The pertinent language in the bond is, “to pay all sums of money due for any labor, material, apparatus, fixtures or machinery furnished to such contractor for the purpose of such construction or improvement.” This language was taken verbatim from the statute. Sec. 26 (6) of the act, Cahill’s St. ch. 121, If 30, reads: “Each contractor . . . shall execute a bond in the form prescribed by the commission, . . . conditioned that he will perform the work in accordance with the terms of the contract .... Such bonds shall also provide against any direct or indirect damages that may be suffered . . . : Provided, one-third the total amount of such bond shall also be conditioned upon the payment by the contractors of all sums of money due for any labor, material, apparatus, fixtures, or machinery furnished to such contractor for the purpose of such construction or improvement. One-third total amount of such bond shall inure to the benefit of any person to whom any money may be due for any such labor, material, apparatus, fixtures or machinery so furnished and suit may be maintained on such bond by any such , person for the recovery of any such-money.” At the top of the bond appear the words, “State of Illinois, Department of Public Works and Buildings, Contractor’s Bond.” Sec. 26 (5) reads: “The commission shall prescribe the form of contract and may include therein such matters as they may deem advantageous to the State. Such -forms shall be uniform in so far as it may be.” As the statute prescribes its terms, even if it be assumed that' the act is a remedial one and the.bond is -to be construed liberally, still it is evident that this is not a case where a presumption arises that the surety used words most favorable to its own interest. • Our duty is to ascertain and give effect to the intention of the legislature as expressed in the statute. . “Statutes should be read and understood according to the natural and most- obvious import of the language used,, without resQrt to subtle or forced constructions for the purpose of limiting or extending their operation.” (People v. Shader, 326 Ill. 145, 161.)

The plaintiff contends -that when the bond is liberally construed the word “materials” includes groceries and meats. He further contends that the Illinois statute is, in substance, the same as the federal statute. We do not concede that this last contention is a meritorious one. In Wiss v. Royal Indemnity Co., supra, the Missouri court held that the language of the federal statute was much broader than the Missouri statute and that it was in fact “broader than many of the Mechanics’ Lien Acts of the several states.” The language of the Missouri statute has been heretofore quoted, and-is somewhat similar to that of our own. It is undoubtedly the policy of the United States courts to give a very liberal construction to the federal act. (See United States v. Ansonia Brass & Copper Co., 218 U. S. 452, 471.) To give the Illinois act the construction contended for by the plaintiff would require reading into it such words as “food supplies used in the prosecution of the work.” If the statute be liberally construed, nevertheless, in our opinion, there is no language in it that warrants such a construction. It seems clear that the statute did not intend that there should be one rule for a city or populated place and another for a wilderness or sparsely settled district, and we must hold that food supplies are or are not “materials,” regardless of the character of the neighborhood of the work. We agree with National Surety Co. v. United States, supra (p. 583), in that regard. To apply the doctrine of indispensability of the Brogan case to the word “materials” would give a forced construction to the language of our statute and extend its plain meaning. The defendant contends that the pertinent words in the statute are the same as those specified in section 1 of the Mechanics’ Liens Act, Cahill’s St. ch. 82, If 1 et seq., passed before the Roads and Bridges Act, and that therefore the construction by the Supreme Court as to what is included in the words “labor, material, apparatus, fixtures or machinery” in said section “is authoritative in determining what is covered by the bond” in the instant case. It cites Hoier v. Kaplan, 313 Ill. 448, and Haas Electric & Mfg. Co. v. Amusement Park Co., 236 Ill. 452, but those cases arise under a lien statute creating a lien against private property, and are, therefore, not helpful. The plaintiff cites Standard Oil Co. v. Vanderboom, 326 Ill. 418, in which it was held that parties furnishing a contractor gas, oil and grease, which are entirely consumed in the use of machinery in the construction of a State hard road, are entitled to a lien, under section 23 of the Mechanics’ Liens Act, Cahill’s St. ch. 82, H 23, on money due the contractor and unpaid, and against which no bonds, warrants, vouchers or other evidence of indebtedness had been issued or delivered to the contractor. Section 23 merely gives a lien against moneys due to the contractor from the State, and, as the court said (p. 424): “No rights of the State are prejudiced or infringed upon, but the person affected is the contractor who owes the money to the person furnishing the materials.” The court quoted with approval the following from West Chicago Park Com’rs v. Western Granite Co., 200 Ill. 527: “The fund devoted to the payment for the work was brought under the control of the court and subject to whatever decree might be finally made.” We cannot agree with the contention of the plaintiff that the case cited is a decisive authority in support of his contention that the word “material” includes groceries and meats. In support of his contention that the great weight of authority is that-groceries, meats, etc., furnished a contractor for public work and necessarily used and consumed by the men during the progress of the work are materials within the meaning of a statutory bond conditioned for the payment for all labor and materials furnished for the construction or improvement, the plaintiff cites a number of cases, some of which we have already cited and analyzed. As to the others: In McPhee v. United States, 64 Colo. 421, recovery was allowed under the federal statute involved in the Brogan case. The court held that the case, under the facts, came clearly within the doctrine of the Brogan case. In Hansen v. Remer, 160 Minn.-453, the bond was conditioned for the payment-by the principal of claims for “camp supplies, equipment and equipment supplies furnished to said contractor and used in connection with said contract.” The plaintiff admits that this case is not in point because of the broad language of the bond. In Plyler v. Elliott, 191 1ST. C. 54, the court bases its opinion on the Brogan case, and reversed the judgment in order that the question of fact as to whether it was necessary to furnish board for the employees might be submitted to a jury. Clatsop County v. Fidelity & Deposit Co., 96 Ore. 2, follows the Brogan case and holds that the camp arrangement was practically the only way that the work could have been successfully prosecuted, as the proof showed that “the portion of the-highway which Hadley graded ran through an unsettled region remote from any city or boarding place, and extended over a distance of about 10.miles.” The Oregon act provided for the payment of “labor or materials for any prosecution of the work provided for in the - contract.” The decision in Carter County v. Oliver-Hill Const. Co., supra, is based upon the Brogan case. The same is true of Southern Surety Co. v. Guaranty State Bank (Tex. Civ. App.), 275 S. W. 436, and Fidelity & Deposit Co. v. Bailey-Pleasants Co., 145 Va. 126,133 S. E.-797. In the last case the parties stipulated “that ... it was necessary for the construction company to board the men and teams.” This case might be otherwise distinguished from the instant one, if it were necessary.

The defendant cites a number of cases relating to public work which hold that the word “material” as used in a statute or bond does not include provisions, groceries or meats. We have heretofore referred to some of these and we do not deem it necessary to refer to the others.

The plaintiff also contends that “while plaintiff’s claim is not primarily based upon the theory that the word Tabor,’ as used in the bond, includes food furnished to laborers as part of their compensation, yet it is urged as one basis for recovery here and is supported by strong authority.” The argument is “that the contractor deducted $1.00 per day from the wages of his laborers in return for giving them board and lodging. In lieu of this $1.00 of wages the laborers were given the food which plaintiff supplied and for which he has not been paid. If the laborers had not been given the food which plaintiff supplied, they would unquestionably all have had a claim against defendant for the $1.00 per day so withheld. In reality plaintiff, by the supplying of the groceries and meats, has paid this $1.00 per day of obligation to each laborer, which defendant would otherwise be-bound to pay. Why then in equity and good conscience should not plaintiff be subrogated to the rights of the laborers against defendant?” The plaintiff practically concedes that he does not rely very strongly upon this contention, and we fail to see how his argument in support thereof can aid us in interpreting the statute and bond in question.

Holding, as we do, that the plaintiff is not entitled to recover under the statute and bond in question, the judgment of the municipal court of Chicago is reversed.

Reversed. ,

G-ridley, P. J., and Keeker, J., concur.