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J.j. Brown Co., Inc. v. J.l. Simmons Co.

OPINION FILED APRIL 8, 1954.

J.J. BROWN COMPANY, INC., APPELLANT,

v.

J.L. SIMMONS COMPANY, INC., APPELLEE.



Appeal by plaintiff from the Superior Court of Cook county; the Hon. RUDOLPH DESORT, Judge, presiding. Heard in the second division of this court for the first district at the April term, 1953. Order reversed and cause remanded with directions. Opinion filed April 8, 1954. Rehearing denied April 27, 1954. Released for publication April 27, 1954.

MR. JUSTICE ROBSON DELIVERED THE OPINION OF THE COURT.

Rehearing denied April 27, 1954.

This is an amended complaint in equity by plaintiff, a subcontractor, against the general contractor on a lathing and plastering subcontract for construction of the Chicago State Tuberculosis Sanitarium. In two counts, the complaint first seeks to impose a mechanic's lien upon monies payable from the State, and, second, to recover damages for breach of contract. The first count of the complaint charges the defendant with (1) failure to provide temporary heat as required of it under the subcontract, thereby delaying plaintiff's performance and increasing its costs and difficulties of performance; and (2) failure to make monthly progress payments under the subcontract, thereby causing plaintiff to cease work. The second count adopts the averments of the first count and further charges defendant with (3) repudiation of its subcontract with the plaintiff. Defendant denied the charges and set up affirmative defenses. Plaintiff replied and reaffirmed its charges. Defendant thereafter moved for summary judgment and filed an affidavit incorporating the contract papers in issue, and additional affidavits of certain officers and agents of the State. Plaintiff also moved for summary judgment, filed supporting counteraffidavits, but later withdrew the motion. The trial court entered an order sustaining defendant's motion and dismissed the action. Plaintiff appeals from that order.

[1-4] The purpose of a summary judgment procedure is not to try an issue of fact but rather to determine whether one exists. Gliwa v. Washington Polish Loan & Building Ass'n, 310 Ill. App. 465, 470; Hartford Accident & Indemnity Co. v. Mutual Trucking Co., 337 Ill. App. 140, 145. The right of the moving party should be free from doubt, determinable solely as a question of law. Bertlee Co., Inc. v. Illinois Publishing & Printing Co., 320 Ill. App. 490, 495. Toward this end, the supporting affidavits are to be construed most strongly against the movant (Molner v. Schaefle, 324 Ill. App. 589, 58 N.E.2d 744), and the whole record must be considered (Gliwa v. Washington Polish Loan & Building Ass'n, supra, at p. 471; Bertlee Co., Inc. v. Illinois Publishing & Printing Co., supra, at p. 496). With these principles of law in mind, we must determine whether a triable issue of material fact exists which is not disposed of by defendant's motion and supporting affidavits.

The first question to be considered is whether there is a triable issue on the averment that defendant was obligated to provide plaintiff's lathers and plasterers with heat and failed to do so. The form subcontract prepared by defendant is dated March 1, 1950. Plaintiff's first work under the contract was in May 1950, when it furnished and installed steel hanger rods for the lath and plaster ceiling construction. The facts occurring thereafter are disputed. Plaintiff alleges that construction had progressed sufficiently on or about December 1, 1950, to enable defendant to install and operate temporary heating facilities for plaintiff's performance, as required by the subcontract; that defendant was ordered by the Department of Public Works and Buildings and the Supervising Architect to furnish temporary heat to enable plaintiff to enter upon its performance, but that defendant failed to do so. Plaintiff further alleges that if it had been permitted to perform on or about December 1, 1950, it would have completed its performance within three months; instead, because of defendant's default, it was unable to enter upon performance of its lathing work until April 24, and of its plastering until July 11, 1951. Meanwhile, material changes in the wages and employment conditions of lathers and plasterers occurring in March, and again in May 1951, increased plaintiff's costs, expenses and difficulties of performance. All this defendant denied. In its affidavit filed in support of its motion it incorporated the provisions relating to heat.

The subcontract incorporates and binds the plaintiff to the contract dated July 21, 1949, between the defendant and the owner, and to the "general conditions, specifications, schedules, drawings and other documents related to said contract. . . ." The subcontractor "assumes toward General Contractor any and all obligations and responsibilities applicable to the work covered by this subcontract, which, by the foregoing contract papers General Contractor assumes toward the Owner." The pertinent provision of the supplement to general conditions reads as follows:

"After building is enclosed and temporary heat is required, in the opinion of the Supervising Architect, all such heat shall be supplied by temporary steam plant heating units as furnished and maintained by the General Contractor . . . and removed by him . . . when directed by the Supervising Architect."

The lathing and plastering specifications relating to heat read as follows:

"If construction work takes place in cold weather, heat will be provided by the General Contractor under conditions as set forth in Supplementary General Conditions, but heat is not guaranteed by either General Contractor or Owner, nor that the heat so furnished will be sufficient to keep the plaster from freezing.

"This Contractor however shall provide such additional heating as he shall require to fully protect all plastering work from damage by frost. Providing such additional heat through the use of salamanders, coke and maintenance as shall be required, to provide a temperature of not less than 64 deg. F. during the setting and drying period of plaster."

[5-7] Did the contract require defendant to provide heat? The contract must be read as a whole, and, whenever possible, effect given to all of its parts. Bundy v. Solon, 384 Ill. 137, 144; Arthur Rubloff & Co. v. Leaf, 347 Ill. App. 191, 194. The provision of the general supplement, together with plaintiff's general assumption of defendant's obligations toward the owner with respect to the work covered by the subcontract, devolves upon plaintiff the duty to provide "all such heat" relating to lathing and plastering. Regarding the requirement of the specifications that This Contractor shall provide such additional heating as he shall require, there is a conflict with the all requirement of the general supplement if This Contractor is taken to mean plaintiff. Under this construction, defendant assumed the obligation to provide some minimum heat. If This Contractor is construed to refer to the antecedent General Contractor of the preceding paragraph (Illinois Cent. R. Co. v. Beebe, 69 Ill. App. 363, 385-6), defendant was required to provide heat up to 64 deg. F. above some minimum provided by plaintiff. Both constructions conflict with the general supplement's all requirement. We conclude that the instruments are ambiguous, and the issue cannot be resolved on a motion for summary judgment where the supporting affidavit, without more, merely incorporates a provision of the subcontract already set out in the answer. On the trial, parol evidence may be offered which will afford a basis for proper interpretation.

Defendant contends that, notwithstanding any delay on its part in permitting plaintiff to enter upon performance of the subcontract, it is not liable because of the subcontract's provisions. In substance, defendant alleges that delays in the demolition work and preparation of the site for construction, included in contracts let to other contractors, delayed defendant about three months in the entire progress of general construction, that to have permitted plaintiff to enter upon performance of its subcontract on or about December 1, 1950, would have disrupted the operation of other trades, and would have substantially delayed general construction of the project. Defendant further alleges that plaintiff at no time prior to April 27, 1951, requested permission or offered to proceed, or protested the scheduling and sequence of performance on the entire project. Plaintiff denied these allegations and reiterated its charge that the sole reason plaintiff was deprived of its opportunity to proceed was defendant's failure to provide temporary heat.

[8-10] The provisions of the subcontract referred to by defendant and incorporated in its affidavit filed in support of its motion read as follows:

"The subcontractor shall immediately proceed with the preparation of material, and shall be prepared to start delivery and/or erection on or before Dec. 1, 1950 and shall start delivery and/or erection within 10 days after receipt of notice from the General Contractor so to do. . . . The several parts and the whole of the work contemplated under this agreement shall be commenced and carried on at such points, in such sequence and at such times as the General Contractor may direct, in such a manner as to ...


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