Appeal from the Circuit Court of Sangamon County; the Hon.
L.A. MEHRHOFF, Judge, presiding. Reversed and remanded.
Rehearing denied July 19, 1966.
This is an appeal from a judgment of the circuit court dismissing the complaint of E.T. Allen, Robert Allen, David Allen and Terry Allen, partners, doing business as E.T. Allen and Sons, against Richard Treat, Highway Commissioner of Chatham Township Road District, Sangamon County, Illinois. The complaint consisted of three counts, on contracts for delivering and spreading road oil, for individual sales of road oil, and on quantum meruit, respectively. All counts covered the same subject matter, that is to say, the sale, delivery and spreading of road oil in the total amount of $37,943.36, on which $15,694.18 had been paid, and $23,354.88 remained unpaid.
It is not disputed that an election had been held in the district authorizing a special road oil tax, which had been levied and collected for the maintenance work in issue.
Count I set forth alleged written contracts for the years 1960, 1961 and 1962 between plaintiff and defendant's predecessor. The alleged contracts were identical except for date. The 1962 contract is as follows:
"This agreement made this 8th day of January, 1962, between E.T. Allen and Sons, Road Oil and Asphalt and William Sommers Commissioner of Highways of Chatham Township, in Sangamon County, Illinois, Witnesseth:
"E.T. Allen and Sons, Road Oil and Asphalt, agree to furnish, heat and apply, in good and workmanlike manner 100,000 gallons, more or less, of road oil on roads of Chatham Township designated by said Commissioner.
"Said Commissioner as such and in behalf of said Township agrees to pay E.T. Allen and Sons, Road Oil Asphalt, for said oil and work at the rate of Fourteen ($0.14) cents per gallon.
"The foregoing provisions and undertakings of each party are for and in consideration of those of the other.
"In Witness thereof, said parties have hereunto set their hands this 8th day of January 1962 at Chatham, Illinois.
"E.T. Allen and Sons, Road Oil and Asphalt
"Commissioner of Highways Of /s/ Wm. Sommers, Township
"The foregoing Contract approved:
"By __________________________ County ...