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Continental Ill. Nat. Bank v. Nat. Casket Co.

OCTOBER 20, 1960.

CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST COMPANY OF CHICAGO AND FAYE W. GALLAS, EXECUTORS OF THE LAST WILL OF HERMAN GALLAS, DECEASED, APPELLEES,

v.

NATIONAL CASKET COMPANY, INC., A CORPORATION, APPELLANT.



Appeal from the Municipal Court of Chicago; the Hon. A.F. WELLS, Judge, presiding. Reversed and remanded.

MR. JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.

This action was brought in the Municipal Court of Chicago by Herman Gallas, d/b/a Herman Gallas & Co. (hereafter referred to as plaintiff), against National Casket Company, Inc. (hereafter referred to as defendant), and was tried by the court without a jury. The suit was one brought for money agreed to be paid by the defendant by virtue of a contract with the plaintiff to supply and install a steel marquee or canopy on the defendant's building, and for damages for wilful and vexatious delay of the defendant in paying the contract price. The court entered judgment for the plaintiff in the sum of $2,635, together with $966.16 interest because of the vexatious delay in payment by the defendant. From that judgment this appeal is taken.

The parties on appeal are restricted to the theory on which the cause was tried. They cannot adopt a position inconsistent with that assumed in the lower court. This rule is applicable both to the successful and the unsuccessful parties to the suit. 2 I.L.P., Appeal and Error, sec. 182; In re Estate of Leichtenberg, 7 Ill.2d 545, 131 N.E.2d 487; Blanchard v. Lewis, 414 Ill. 515, 112 N.E.2d 167.

The defendant contends that the theory upon which the case was tried in the trial court was erroneous and that both the plaintiff and the trial court misconceived the applicable law.

The defendant had installed a new limestone front on its building. Sometime prior to January 18, 1952 Herman Gallas met with Warren H. Brown, the Chicago manager of the defendant, to discuss the manufacture and installation of a steel marquee or canopy on the defendant's building. Subsequent to this meeting the plaintiff sent to the defendant an estimate, dated January 18, 1952, for the manufacture and installation of a marquee made from 20 gauge stainless steel, the frame-work of which would consist of channel irons and four rods that would be used to suspend the marquee. The estimate stated that the marquee would be approximately 12 feet in width, would project from the building 9 feet, and would cost $2,635. A penciled sketch accompanied the estimate, and below the sketch was written the following:

8" deep gutter to one end — either outside or against building Bolted thru.

On February 14, 1952 the defendant sent a letter to the plaintiff in which it said to enter its order for a "complete hanging Marquee made of 20 Gauge Stainless Steel per your letter of specifications of January 18, 1952."

The marquee was installed by employees of the plaintiff during the absence of Brown from Chicago. On the limestone front of the defendant's building, immediately over the door, the name "National Casket Company" was carved in a slab of limestone which was a part of the building. The canopy, when installed, covered better than the lower half of the word "Company." The plaintiff in its statement of claim alleged that he had installed the marquee "in accord with the terms of the . . . purchase order and agreement," and the purchase order was attached to the statement of claim.

The defendant in its defense denied that the marquee was installed in accordance with the terms of the purchase order and states that it was defectively installed and "contrary to that agreement of the parties in that the Marquee obliterated the face on the front of the building which name was carved in the limestone, which was a part of said building." The plaintiff filed a reply.

At the beginning of the trial the defendant, in answer to the court's question, admitted that the marquee had been installed. The court thereupon apparently assumed that the defendant had the burden of proof and that it was incumbent upon the defendant to prove that the marquee had not been installed in accordance with the terms of the contract, which would require proof on the part of the defendant that the agreement between the parties was that the marquee should be so installed as not to encroach upon the sign over the door of the building.

The estimate of the plaintiff and the purchase order of the defendant, together with the sketch, were admitted in evidence. Gallas was called as an adverse witness by the defendant, and he testified that he had a conversation with Brown, the representative of the defendant, after he had sent Brown the estimate which was in evidence. The witness testified that Brown called his attention to the sign over the doorway of the building, that the witness then told Brown that he would make the marquee to follow the contour of the ceiling, and that at that time there was a discussion of the height of the canopy. The witness testified that he told Brown that the marquee should be eight inches high, and that if it was that high and followed the contour of the ceiling it would obliterate at least half of the word "Company"; that Brown thereupon said that he was satisfied to have it eight inches even if it did obliterate a portion of the sign. Brown, on behalf of the defendant, testified that he talked to Gallas and at that time he told him that the canopy had to be installed so that the name would show; that he asked him for an estimate and afterwards Gallas sent him the estimate and a sketch, and in response to that he issued the order for the marquee; that on the sketch he had marked eight inches as the height of the canopy though he had never measured the distance from the top of the door to the word "Company."

After this evidence had been presented, and after the plaintiff had tendered Brown for cross-examination, the attorney for the plaintiff made a motion for a finding in favor of the plaintiff. This was objected to by the defendant. The court said that he would reserve the motion until after cross-examination.

The plaintiff then cross-examined Brown. Gallas was later recalled to answer a couple of questions. The plaintiff again made a motion for a finding in favor of the plaintiff "at the close of all of the defendant's evidence, the defendant having had the burden of proceeding." The court sustained the motion and found for the plaintiff. Judgment was entered for the amount sued, plus $966.16 interest.

Under the theory upon which the case was tried the court took the view that upon defendant's admission that the marquee had been installed the burden of persuasion, as well as the burden of going forward with the evidence, devolved upon the defendant. The defendant under that theory then proceeded to put in evidence to prove its case. When the defendant introduced the testimony of Gallas and Brown it indicated that the documents in evidence did not contain all the terms of the contract between the parties. The court properly admitted that evidence. The plaintiff took the view that the contract in question was complete in itself and that any parol evidence would be inadmissible because it would tend to vary the terms of the written contract. It is a rule of law that parol evidence may be introduced to show additional consistent terms of a contract where the writing is not found to be a complete and exclusive statement of the whole agreement. That question is determined by an inspection of the entire document and from parol evidence, which may be introduced to place the tribunal in the position of the parties at the ...


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