Docket Number:It is insisted by counsel for plaintiff in error that defendant in error was not entitled to commissions on the amount of the contract let to Gaffney & Long, because the work contracted for was never performed. This would be true provided defendant in error was responsible for the failure of Gaffney & Long to complete their contract. -But it is to be observed that the Gaffney & Long contract contained a provision that payment thereunder should be made solely out of the special assessment to be levied under ordinance 107, and a further provision that the contractors assumed all risk in prosecuting the work before the assessment was confirmed. As we have already seen, the judgment of confirmation was entered March 3d, but on the following day, March 4th, an appeal to the Supreme Court was granted and sixty days allowed in which to file bond and bill of exceptions. This time would expire on May 4th, and on that day the village board ordered the assessment released of record, and thereby abandoned the further prosecution of the enterprise. The granting of the. appeal amounted substantially to a suspension of the judgment of confirmation, and as payment for the work was to be made solely out of the proceeds of the assessment, it would be unreasonable to hold that Gaffney & Long should have gone on with their contract under the circumstances. After the appeal was granted they could not know that the assessment would ever be confirmed, and we fail to see from the evidence how defendant in error was responsible for the delay. He could not have compelled Gaffney & Long to proceed under their contract, nor was he to blame for not trying to do that which it was impossible for him to accomplish. By their own acts, the village authorities placed it out of the power of Gaffney & Long to obtain any pay for their work, if they had carried out their contract, and therefore they could not be expected to perform. As a consequence of the same acts of the village authorities, defendant in error was prevented, without his fault, from superintending that portion of the work specified in the Gaffney & Long contract, although ready and willing to do so
