Appeal from the Circuit Court of St. Clair county; the Hon.
RICHARD T. CARTER, Judge, presiding. Judgment reversed and cause
JUSTICE HOFFMAN DELIVERED THE OPINION OF THE COURT.
Rehearing denied October 26, 1959.
This action was brought by the plaintiff for damages for breach of two contracts for the furnishing of electrical materials and labor by the plaintiff on three low-rent housing projects constructed for the defendant. The defendant counterclaimed for breach of the same contracts. The two contracts have the same terms and conditions and, by agreement of the parties, are considered as one contract for purposes of evidence and law. The action was tried by the court without a jury. After many months of intermittent hearings and the introduction of volumes of evidence, the court found for the plaintiff on its complaint and against the defendant on its counterclaim. The defendant's main point upon appeal is that the judgment is against the manifest weight of the evidence.
On November 26, 1951 defendant entered into a contract with plaintiff to furnish labor and materials for electrical work on a project known as Project Ill. 1-3, which involved 38 buildings with 300 dwelling units. On January 21, 1952 the same parties entered into a similar contract on projects known as Projects Ill. 1-4 and Ill. 1-5, which involved 46 buildings with 300 dwelling units and 13 buildings with 100 dwelling units respectively. Orders by the defendant to plaintiff to proceed with the work were issued on December 18, 1951 and January 23, 1952. Plaintiff submitted progress schedules on each project on February 2, 1952. These project schedules were formulated by plaintiff, correlated to the progress schedules of the general contractor, and approved by defendant. They indicated when certain phases of the work were to be done.
Early in 1952 work was commenced at the aforesaid projects by the general contractor. However, by August of that year the defendant had become dissatisfied with the progress and work of the plaintiff, and on August 19, 1952 gave plaintiff a five day notice of contract termination. The contract between the plaintiff and defendant provided in part as follows:
"If the Contractor . . . should persistently or repeatedly refuse or fail to supply enough properly skilled workmen or proper materials . . . or persistently disregard instructions of the Local Authority or Architect . . . then the Local Authority may, by at least five days prior written notice to the Contractor . . . terminate the Contractor's right to proceed with the work. In such event, the Local Authority may take over and prosecute the work to completion . . . and the Contractor and his sureties shall be liable to the Local Authority for any excess cost occasioned. . . ."
The contract further provided that:
"If the Contractor refuses or fails to prosecute the work, or any separable part thereof, with such diligence as will insure its completion within the time specified in the Special Conditions, or any extension thereof, or fails to complete said work within such time, the Local Authority, may, by written notice to the Contractor, terminate his right to proceed with the work or such part of the work as to which there has been delay. In such event the Local Authority may take over the work and prosecute the same to completion, by contract or otherwise and the Contractor and his sureties shall be liable to the Local Authority for any excess cost occasioned the Local Authority thereby."
Plaintiff's contention is that defendant wrongfully terminated the contract and thereby became liable to plaintiff for its loss of prospective profits. Defendant contends that the termination was proper, and that it is entitled to recover the excess costs occasioned.
We are mindful of the oft-stated rule which requires that we must affirm a trial court's finding if it is not contrary to the manifest weight of the evidence. But, we also recognize it to be our clear duty to carefully examine the record here, voluminous as it may be, to determine whether the evidence justifies the judgment. If, from a consideration of the whole record, it appears to us that the evidence does not justify the judgment, it is our plain duty to reverse. Sharkey v. Sisson, 310 Ill. 98, 114, 115; Daven v. Downey, 378 Ill. 543, 552, 39 N.E.2d 45, 49; Stephenson v. Kulichek, 410 Ill. 139, 147, 101 N.E.2d 542, 546. This obligation rests upon us irrespective of whether the case is one at law or chancery. Chicago Title & Trust Co. v. Guild, 329 Ill. App. 374, 382, 68 N.E.2d 615, 618.
The burden was upon the plaintiff to prove, by a preponderance of the evidence, that the defendant, under the terms of the contract, improperly terminated plaintiff's right to proceed with the work. Plaintiff called two witnesses in this regard, its president, Victor Friedman, and a superintendent, William Rogers, who was hired by plaintiff 11 days prior to the contract's termination.
Friedman testified that his company had been in the electrical contracting business in the locality for many years, and had a vast experience in electrical contracting for the Federal Government, State of Illinois, and various schools and municipalities. He admitted that the electrical work on the projects in question did not begin on time but blamed this upon the late spring, heavy rains and slowness of the general contractor. He testified that there was no question of plaintiff's ability to complete its contract, for it had the finances, labor, materials and equipment necessary to do the job. He stated that on August 18, 1952, the day before the notice of termination, the work was moving along nicely on schedule and that he had plenty of men on hand.
Rogers, the superintendent, testified that he checked the progress of the jobs in early August; that he found the electrical employees and foreman qualified; that the work was in accordance with the specifications; and that nowhere was plaintiff holding up the progress of other crafts.
No other evidence was produced by plaintiff. Its case must rest, therefore, upon the testimony of its president and ...