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Meyer v. Buckman

OCTOBER 27, 1955.

VENIS MEYER, PLAINTIFF-APPELLEE,

v.

GERALD BUCKMAN, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Kankakee county; the Hon. C.D. HENRY, Judge, presiding. Affirmed.

MR. JUSTICE CROW DELIVERED THE OPINION OF THE COURT.

Rehearing denied November 15, 1955.

This is an appeal from a judgment for $820 in favor of the plaintiff, upon the finding of the lower Court, sitting without a jury, in an action for breach of a contract to permit the plaintiff, a house mover, to move a dwelling house for the defendant.

The complaint alleged, in substance, that on or about January 27, 1953, the plaintiff and defendant entered into an agreement, partly oral and partly in writing, that the plaintiff would move a dwelling house owned by the defendant from its location on South Alma Avenue, Kankakee Township, to another location seven blocks away for a consideration of $900, starting January 31, 1953; that on January 29, 1953, the defendant requested the plaintiff to wait two weeks before moving the house, and the plaintiff agreed; that on or before February 5, 1953, the defendant breached the agreement, as modified, by hiring another house mover to move the house, without the consent of the plaintiff, which other house mover completed the moving, thereby preventing the plaintiff from moving the house; and that the plaintiff was at all times on and after February 5, 1953, ready, willing and able to move the house.

The defendant's answer denied most of the material allegations of the complaint, and set forth as an affirmative defense that the contract was illegal, void, and unenforceable because the plaintiff did not have workmen's compensation insurance, or other security approved by the Industrial Commission, and the plaintiff intended to pursue his occupation in violation of Section 4 (a) and (d) of the Workmen's Compensation Act, the plaintiff having allegedly told the defendant those circumstances and his intentions. The plaintiff's reply, so far as presently material, was that he did not have workmen's compensation insurance at the time of the contract with the defendant, he intended to move the house without obtaining workmen's compensation insurance, no reference was had between him and the defendant as to other possible security under that Act, and the contract did not contemplate that he pursue, and he did not intend to pursue, his occupation in violation of Section 4 (a) and (d). In addition, the defendant's further defenses, as developed at the trial, are that the plaintiff's evidence of anticipated loss of profits was insufficient to justify the judgment, and that the removal of a particular dwelling house constitutes a new venture as to which loss of anticipated profits is not a proper element of damages.

The written contract of January 27, 1953, offered and admitted in evidence, is as follows:

"CONTRACT"

"This contract, drawn this 27th day of Jan., in the year of our Lord Nineteen Hundred and 1953, between Gerald Buckman, party of the first part, a resident of the KKK of KKK County of Ill., State of ____, and Venis Meyer, Party of the second part, a resident of the Village of Manteno, County of Kankakee, and State of Illinois, and containing the following agreements and considerations:

"Party of the second part agrees to move house, owned by party of the first part, located in KKK, to be delivered on lot owned by party of the first part in KKK.

"For such services, party of the first part agrees to pay party of the second part $900.00.

"Party of the first part agrees to pay $400.00 to the party of the second part for services rendered to date when said house is placed on rollers, and the balance to be paid when the house is delivered on lot owned by party of the first part in KKK.

"Party of the second part agrees to move house from old location to new, the distance of 7 blocks feet, ____ miles for the price of $900.00.

"All wires and Right of Way taken care of by party of the first part.

(s) Venis Meyer ____________________ Witnesses

(s) Gerald Buckman"

The plaintiff was the sole witness on his own behalf, and the defendant was the sole witness on his behalf. The evidence is undisputed that the written contract was entered into and also that the defendant on January 29, 1953, requested the plaintiff, after the contract was signed, to "hold back a week" from moving, which was consented to by the plaintiff, the defendant saying he would call the plaintiff when he wanted the plaintiff to move it, which the defendant did not do; a little after a week the plaintiff found that one Nesbitt, another house mover, was in the process of moving the house; the defendant gave the plaintiff as an excuse for the requested one week's delay that the defendant's partner was trying to sell a hot water system to Nesbitt's son, the defendant was in a predicament, and when he could get the deal through, he would notify the plaintiff. Either on January 27 or January 29 the plaintiff told the defendant that he hadn't renewed his workmen's compensation insurance, but if he needed such he would get it.

The defendant at the outset was informed that the plaintiff would use his sons for help. The two sons were 14 and 17 years of age and in school, except on Saturday and Sunday. The plaintiff testified that in order to move the house three persons would be engaged and about 48 hours would be spent on the job. To move the house down the street would take a truck driver, the plaintiff, and a laborer, which would take one day; that it would take three men one day to set up the house on the new location; and that the two boys could do the amount of work comparable to a skilled man.

The plaintiff further testified that he had been in the house moving business 33 years, moving about 10 houses a year, could move the house with his two old trucks, himself, and the two boys, and estimated the cost of moving at $80, being about $30 for the cost of gas, and about $50 for the breaking of planks and blocks in moving, that being, he said, the usual and customary breakage on the average size house, with no wage expense for the two boys, the plaintiff not paying the boys anything. He stated that the last time he had had men employed was in November 1952; that he did not keep track of depreciation on his equipment; that the trucks were a 1929 International bought in 1940 for $100, and a Chevrolet bought secondhand in 1936 for about $200; that he would have used certain moving wheels in which he had $100 invested, and about eight jacks his father had left him and he bought some for $3 apiece, the jacks being worth about $3 each; the only other tool he would have used was a sledge hammer; he would have had no certain expense for wear and tear; and he said he would have made an $820 profit on the contract.

The defendant says that the plaintiff could not have performed the contract without having been in violation of Section 4 (a) and (d) of the Workmen's Compensation Act and subject to the penalty provided therein. Those portions of the Act, Ch. 48, Ill. Rev. Stats. 1951, pars. 138.4, subds. (a) and (d) [Jones Ill. Stats. Ann. 143.67, subds. (a), (d)], are as follows, so far as material:

"138.4 Provision to insure payment of compensation — Existing insurance or relief association — Liability of insurance carrier.) Sec. 4. (a) Any employer who shall come within the provisions of Section 3 of this Act, and any other employer who shall elect ...


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