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E.a. Meyer Const. Co. v. Drobnick

MAY 14, 1964.




Appeal from the Circuit Court of Lake County; the Hon. PHILIP YAGER, Judge, presiding. Judgment affirmed.


Rehearing denied July 2, 1964.

This is an action at law commenced by the Plaintiff, E.A. Meyer Construction Co., an Illinois corporation, to recover the balance due with interest on an oral contract entered into on or about March 17, 1955, wherein the Plaintiff installed sewer and water mains for Joseph J. Drobnick and Jerome P. Drobnick, d/b/a Drobnick Realty Co., the Defendants. The Plaintiff seeks to recover the balance due of $3,500 together with interest of $3,122.73 on the theory that the Defendants had agreed to pay interest at the rate of 6%. The Defendants contend that the payments due the Plaintiff were to be made upon the sale of lots in Park Estates Subdivision where the installation took place and that they did not agree to pay interest.

The Defendants counterclaimed stating the Plaintiff by a written contract dated December 31, 1957, agreed to purchase 90,000 cubic yards of sand for $25,200 from other premises. The contract further provided ". . . entire worked area after removal of such sand, will all be bladed off to fill all holes and ruts, and that the side banks will also be graded and properly sloped with a two to one slope. The general bottom, as established by removal of the sand, of the excavated portion to be LEVELED within a foot more or less, into one plain and such job to be done in a good workmanlike manner. Top soil to be placed back over and into a rough grading job." 67,868 cubic yards of sand were removed for which Defendants received the sum of $18,984. Defendants seek to recover the balance due under the contract price, namely $6,216 together with damages for breach of contract and failing to comply with the provisions of the grading and leveling above quoted.

Judgment was entered on a jury verdict wherein Plaintiff's damages were assessed in the sum of $5,000; the jury finding against the Defendants on the counterclaim. Defendants seek a reversal and a remandment for a new trial stating that the verdict was contrary to the law and against the manifest weight of the evidence.

Mr. E.A. Meyer for the Plaintiff testified that the Defendants agreed to pay interest at 6% on the balance due and denied that the Plaintiff was to wait for its money until the Defendants could sell the land where the mains were installed; Mr. Joseph J. Drobnick, for the Defendants stated that the payment was to be made from and out of the proceeds of the lot sales that fronted on the streets wherein the sewer and water mains were installed.

Additional proof by the Defendants consisted of an exhibit, a portion of a statement appearing in the books of account of the Plaintiff, indicating the total amount due of $9,500 and subsequent credits of payments commencing March 8, 1957, to December 6, 1960, showing an unpaid balance of $3,500 with no interest computations appearing thereon. This appears to be in substance all of the proofs offered by the parties on the Complaint.

On the Counterclaim the trial court correctly instructed the jury that it should not consider any further sum due for sand for failure to remove 90,000 cubic yards of sand in that the contract qualified the quantity to be removed by the words "more or less" and "quantity as agreed between National Gypsum Co. and E.A. Meyer Construction Co." The record is barren of any evidence as to the quantity agreed upon between National Gypsum Co. and the Plaintiff.

The eastern end of the excavation after the removal of the sand was approximately ten feet lower than the western end of the excavated bottom. It was estimated by Mr. Thacker, an engineer, that the cost to level to a horizontal plain would be $12,000. The testimony of the Plaintiff who apparently had experience in this type of work was in the sum of $6,000. Pertinent provisions of the contract pertaining to this issue are as follows:

"Buyers further guarantee and agree that the general bottom, as established by removal of the sand, of the excavated portion to be LEVELED within a foot, more or less into one plain. . . ."

The trial court interpretated this provision we assume from the refused instructions to the jury, that a level plain is not necessarily horizontal, which construction this Court approves. Further testimony was adduced by the Plaintiff and the Defendants as to the condition of the excavated portion upon removal of the sand. On behalf of the Plaintiff testimony was submitted that the excavated portion was level within one foot, more or less; that the top soil was placed back over it; a rough grading job completed and that all requirements of the contract had been complied with. Defendants' proofs were that the excavation was not level and that the rough grading had not been completed or done.

[2-6] From the evidence above quoted pertaining to the original Complaint and Counterclaim it is apparent there was a conflict in the testimony and as a reviewing court we cannot substitute our judgment for that of a jury in passing on the weight of the evidence and the credibility of the witnesses. Collister v. Allen E. Kroblin, Inc., 30 Ill. App.2d 288, 174 N.E.2d 911. It is a well established rule that where the evidence is conflicting in order for a verdict to be contrary to the manifest weight of the evidence, an opposite conclusion must be clearly apparent. Stone v. Guthrie, 14 Ill. App.2d 137, 144 N.E.2d 165. Likewise, a verdict should not be set aside merely because the jury could have drawn different inferences from the evidence. Danhof v. Osborne, 10 Ill. App.2d 529, 135 N.E.2d 492. On this question the jury found fit to accept one of the two conflicting versions on both the complaint and the counterclaim. We cannot see that a conclusion opposite to that reached was grossly apparent. In such situations this court will not substitute its judgment for that of the jury.

It is further contended by the Defendants that the verdict should be set aside and a new trial granted because of prejudicial closing argument on the part of Plaintiff's counsel. The closing arguments of counsel are not contained in the report of proceedings. The prejudicial argument is based solely on an affidavit of one of the Defendants contained in the record. A reviewing court cannot pass upon the issue of prejudicial final arguments of counsel without such ...

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