The point was urged upon argument that there was a variance between the amount of the verdict and the judgment of this court, but upon examining the amended record we find that the seeming discrepancy was caused by a clerical error in copying the verdict into the transcript of the record, and as now appearing there is no variance.
It was next urged that no recovery pan be had upon the common indebitatus assumpsit counts, as there existed a special contract between the parties, and appellee should therefore have declared specially. It is well settled that when a special contract has been substantially performed by the plaintiff and nothing remains to be done but the payment of the money, a recovery may be had under the common counts. Lane v. Adams, 19 Ill. 167; Childs v. Fischer, 52 Ill. 205; Taylor v. Renn, 79 Ill. 181. And the same principle is held to apply when the work has been accepted and appropriated by the defendant, although it was not done within the time and in the exact manner provided for in the contract, leaving the defendant to recoup any damages he may have sustained by a failure by the plaintiff to perform the contract according to its precise terms. Holmes v. Stummel, 24 Ill. 370; Queen v. Doolan, 55 Ill. 526; Adlard v. Muldoon, 45 Ill. 193; Estep v. Fenton, 66 Ill. 467; Taylor v. Renn, supra.
It is said in Holmes’ case, supra, that “ when the suit is brought upon a general indebitatus assumpsit for work and labor, the defendant may defend by showing a special contract and the plaintiff can not recover unless he shows that though the work was not done as provided by the contract, that it has been appropriated and enjoyed by the defendant, and in that case the contract affords the rule of damages, so far as it can he traced and followed, less any amount the defendant may justly recoup for injury, for non-performance of the contract.” The contract furnishing the measure of recovery in such case, no necessity arises for a quantum meruit or valebant count in the declaration. And even in cases where no price is fixed by the contract, the strictness of the old rule requiring such counts has been very much relaxed, and the rule seems now to be as stated by Cliitty in his work on Pleadings, page 352, that “ although Sir William Blackstone mentions the quantumi meruit and valebant as useful, and as then to have boon supposed necessary, variations to avoid the risk of the plaintiff’s not being able to prove an agreement to pay a fixed price, the opinion of the profession has long been that such quantmn meruit and quantum valebant counts are wholly unnecessary, and that under an indebitatus count in assumpsit or debt the plaintiff may recover, although there be no evidence of a fixed price.”
If the work has been done under a special contract which has not been executed, and there has been no abandonment or rescission of it, no acceptance of the work and no appropriation and enjoyment of it by the defendant, no authority need be cited to show that the plaintiff can not recover upon this declaration or any other. Whether the special contract has been performed, or if not, whether any of the other conditions exist allowing a recovery, are questions of fact and should be submitted to the jury for determination under proper instructions from the court.
As this judgment must be reversed, for what we conceive to be erroneous instructions given to the jury, we shall not undertake at this time to pass upon the questions of fact that arise in the case.
The first instruction given for the plaintiff is as follows: “ If yon believe from the evidence that the defendant allowed plaintiff to go on and clear up and fence land after he had broken the terms of his lease, then defendant ought as a matfer of law; if you believe that defendant failed to enter and repossess himself, if he had a right so to do under the lease, or that defendant led plaintiff to believe by his conduct that he would pay him according to contract, and that plaintiff suffered thereby, then, as to such sum as you find he has so suffered, yon should find for him and assess his damage.” It is quite difficult to fully comprehend just what was meant by this instruction. So far as we can understand it, the jury are told in one branch of it, that it was the duty of the defendant to re-enter into the possession of the premises, if he had the right to do so by the terms of the lease, and if not, then he must pay according to the contract if the plaintiff cleared up and fenced the land after the terms of the lease were broken. We do not think the law requires this of the defendant. Under the terms of the lease the lessor had the option to declare a forfeiture for a failure by the lessee to perform its covenants, but it was not made obligatory upon him to do so. He could permit the lessee to still occupy the land, but this alone would not prevent him from recovering any damages sustained for such breach of the contract in a suit brought for that purpose or to recoup the same in an action brought by the lessee to recover pay for his work. By permitting the plaintiff to expend work upon the premises in promoting the object of the contract after the time of performance had expired, he may have waived his right thereafter to declare a forfeiture for such breach, but beyond this, his election in this case not to declare a forfeiture should not, we think, prejudice him.
The second instruction is confessedly erroneous in telling the jury that they were warranted in refusing to believe any witness that they believed had sworn falsely, either knowingly or not. Before a witness should be entirely discredited because he has made a false statement, it should appear that he made the statement, knowing it was false, and it should be upon some matter material to the issue. Penn. Co. v. Conlan, 101 Ill. 93.
The third instruction given for the plaintiff was as follows : “Ton are the judges of the force and effect to be given to the contract in this cause, as you are to judge of the weight of the evidence.”
This is in violation of the familiar rule that contracts are to be construed by the court alone. Contracts are to be enforced according to their legal effect as determined from the words employed by the parties in expressing their intent-. Courts should ascertain the intention of the parties from the language used, when their contract has been reduced to writing in unambiguous terms, and their intention thus ascertained is to control in determining their rights and liabilities under the contract. It is the proper function of the court to solve such question, and when requested, should inform the jury of the legal effect of the contract, and it is error to instruct the jury to construe the contract for themselves. This same objection also applies to the first instruction already noticed. We see no evidence in the record upon which to base the sixth instruction. Although the plaintiff was hindered in his work by high water, it nowhere appears nor is there any competent evidence tending to show that with sufficient help he could not have complied with his contract after the flood subsided. As to the clearing of the roadway, under the verbal agreement, there is evidence tending to show that the parties intended that it should be cleared upon the line run by the surveyor under the direction of the viewers, and if so, the plaintiff can recover for the work although the surveyor made a mistake as to the exact location of the center line of the section.
For the reasons stated the judgment will be reversed and the cause remanded.
Judgment reversed..