delivered the opinion of the Court:
About the middle of September, 1871, a written contract was entered into between the parties to this suit, whereby the appellees were to manufacture and place in the building of the appellant, at the corner of Madison and Dearborn streets, in the city of Chicago, certain iron work for a certain price, 85 per cent thereof to be paid on certificate of the architects, as the work progressed, and 15 per cent when completed, the work to be at the contractors’ risk until completion.
After all the iron work had been manufactured, but before any of it had been set up, the building was wholly destroyed by fire, October 8, 1871, and has not been rebuilt.
This was an action brought by the appellees to recover for the price of the iron work—they recovered in the court below and the defendant appealed.
It may well be, as insisted on by appellant’s counsel, that there could be no recovery under the special count upon the contract, because of the variance between the contract as proved and as laid in the declaration. But we perceive no sufficient reason why a recovery might not be had under the common counts for labor done and materials furnished. So far as respects the manufacture of the iron work, there had been a fulfillment of the contract on the part of appellees, and nothing more remained to be done but the payment of the price.
'It was in evidence that the price agreed upon for the iron work was $206, and for putting it up $70 or $75, though in the written contract a certain sum was to be paid for the whole; that, on the 28th of September, 1871, the work had all been manufactured, and was ready to be delivered, and was laid by at the foundry; that about a week before the fire, and within the time limited for the completion of the contract, appellees commenced to deliver the iron work, and did deliver one load, a column and plate; that the building was not then ready for the work, and appellant directed that no more should be sent until it should be ready, and promised to notify appellees when ready. On Saturday afternoon, they were notified that the building was ready, and on the following Sunday night, October 8, 1871, the building was wholly destroyed by fire. The time required to put up the work would have been about two days. After the fire, a bill of $206 for the iron work was presented to appellant, and he denied his liability.
Appellees were no way in default. They were ready and offered to fully perform within the time limited, but were prevented by appellant.
The reason of their not entirely completing their contract by placing the iron work in the building, was, the default of the defendant in not having a building provided for the purpose.
The position is taken that, under the contract, the appellees assumed the risk of the destruction of the building by fire. That is not the true construction of the contract. It was the material which was to be at the risk of apjiellees, not the building.
It is insisted that the obtaining of the architect’s certificate, was a condition precedent to the right to bring the action.
But the case contemplated for the giving of the architect’s certificate never arose. The certificates were to be given as the work progressed, i. e. as the work of setting up the iron work in the building progressed. Hone of it was placed" in the building, or delivered on the ground, except one load. The price of the iron work was a matter agreed upon, as was testified to.
And the appellant placed his refusal to pay, on the ground of no liability to pay, not on that of the want of an architect’s certificate.
We are of opinion the verdict^was sustained by the evidence.
The judgment is affirmed.
Judgment affirmed.