Appeal from the Circuit Court for the Third Judicial Circuit
of Madison County; the Hon. JAMES O. MONROE, Judge, presiding.
Reversed and remanded.
Rehearing denied March 31, 1967.
The corporate plaintiff, Watson Lumber Company, the building contractor, obtained a judgment for $22,500 in a suit to recover the unpaid balance due under the terms of a written building contract, and additional compensation for extras, against the defendants William and Mary Guennewig. Plaintiff is engaged in the retail lumber business, and is managed by its president and principal stockholder, Leeds Watson. It had been building several houses each year in the course of its lumber business.
The contract language and specifications which were prepared by plaintiff and signed in its office on December 3, 1962, contemplated the construction of a 4-bedroom, 2-bath, air-conditioned home on the defendant's lot at a contract price of $28,206. The plans from which Watson prepared the plaintiff's bid and specifications were put in his hands by the defendants, and became part of the contract along with the specifications. The construction was apparently commenced in December 1962, and by August 1963, the contractor was claiming the house was complete, and requesting payment of the contract balance; it had been doing so for about 30 days. The defendants had withheld payment contending dissatisfaction with the performance and failure to complete in accordance with the terms of the contract.
The parties agreed that the defendants have paid the sum of $11,407.20 on the contract price, thus leaving a balance of $16,798.89. The trial judge who heard the case, without a jury, stated that his award included the balance of the "agreed basic price" together with interest for two years from the date of the defendants' last payment, being July 1963, at the statutory rate of 5%. He also obviously included an amount for "extras," and states that from the amount of the award "the allowance for defective items" have been deducted in response to defendants' claim for setoff.
The contractor claimed a right to extra compensation with respect to no less than 48 different and varied items of labor and/or materials. These items range all the way from $1.06 for extra plumbing pieces to $429 for an air-conditioner larger than plaintiff's evidence showed to be necessary, and $630 for extra brick work. The evidence, in support of each of these items and circumstances surrounding each being added, is pertinent to the items individually, and the evidence supporting recovery for one, does not necessarily support recovery for another.
When we total the elements that the trial judge set out in the judgment order, and which plaintiff contends are included, we do not reach the total of $22,500, for which judgment was given to the plaintiff. Thus the whole appears here to be greater than the sum of all its parts, even before any of the parts are subjected to examination. The plaintiff, in his explanation of the judgment contained in his brief, tells us that the "extras" charged and apparently awarded in his recovery, total $3,840.09. While it was disputed whether or not the contract balance was due, it was not disputed that the amount of the balance was $16,798.89. Interest as described by the judge, was 5% per year for two years on this balance, thus making the maximum interest, apparently included, $1,679.88. The total of these three; the contract balance, the interest and the extras charged amount to $22,318.77. This appears to us to be the total of every part which the plaintiff claims is included in the judgment under his own view of the matter; yet this leaves us still $181.23 short of reaching the amount of the judgment entered. This leaves us completely at a loss to find any deductions or setoffs of any kind allowed to the defendants for "omissions or defects." While the order recites "that claims for omission or defects" were considered, it also recites "but allowed nothing for claims for defects which appeared to have been brought on by the defendants or which are trivial," but it also recites that there has been an allowance made for defective items ("less the allowance for defective items"). The plaintiff's brief says that the trial judge reduced the claim "by an undisclosed sum" as "allowances for defects and omissions in the work." We find the sum not merely undisclosed, we find it undiscoverable.
The defendants contend that the plaintiff failed to complete performance under the contract, and that the work was faulty in several respects. The evidence clearly shows this to be the case. It warrants giving defendants the benefit of a setoff substantial enough to be found without the aid of searching calculations. Principal claims of error in the trial court are: (A) That the plaintiff was not held to the burden of proof which the law assigns to one making a claim for extras under these circumstances; that the evidence is not adequate to support the award for extras which the judgment of the court below contains, and, (B), That the written contract provided that changes and additions in work or material were to be agreed to in writing; that this requirement was not complied with by the plaintiff nor was it waived by the defendants and that the evidence in the record fails to establish either compliance or waiver. The case thus involves reference to the written agreement which contained the following:
"Drawings and specifications are intended to cooperate. Anything shown on the drawings but not mentioned in the specifications or vice versa or anything not expressly set forth in either but which is reasonably implied shall be furnished as though specifically shown and mentioned in both without extra charge. Changes in work or material from that specified shall be stipulated in writing and attached to and made a part of the contract."
Contract language is to be given its clear meaning if clarity is present, but ambiguities or uncertainties are to be resolved against the party creating them. Spitz v. Brickhouse, 3 Ill. App.2d 536, 123 N.E.2d 117. Here, the contractor is the author of the language.
[2-4] The trial judge states in the order that there are ambiguities present in the contract, but the record indicates no resolving of any of the ambiguities in favor of the defendants as the law requires. Indeed, it does not show that the contract language was given any effect or operation in the trial. It cannot be ignored for that would, in effect, be writing a new agreement different than the one the parties made. There is no basis for ignoring their agreement. Deviations by the parties from contract terms do not produce a legal cancellation. Booher v. Williams, supra.
[5-8] Watson, over objection, was allowed to testify that the finished house was what the defendants wanted, although not what the plans and specifications called for. Preliminary negotiations of the parties leading up to a written contract are mentioned in the written agreement and the oral negotiations may not be shown for the purpose of contradicting the written agreement when it is acknowledged as it was here, that this written contract, which included the plans and specifications, constituted the full agreement between the parties, and at the outset was accepted by both as such. The parol evidence rule in essence, is a rule of contract law rather than a rule of evidence. It requires that the terms of the written contract will not be altered by oral testimony; and evidence cannot be permitted, that the parties did not in fact agree to what was written or agreed to something else. Corbin on Contracts, § 573; Anson on Contracts, Patterson Edition, § 366. Parol evidence cannot be used to vary or contradict the plain unambiguous terms of a building contract. 13 Am Jur2d 114, "Building & Construction Contracts," § 124.
Neither does the record contain any evidence to support or warrant the finding of the trial judge expressed in his order:
"The house was built under mail order plans not meant for the location in question. . . ."
There is no evidence in the record that the plans weren't suited to the lot. There is evidence that plaintiff had a complete knowledge of them; that its specifications and contract price were prepared with reference to them, and that they were made a part of the contract. Their origin is irrelevant; their quality or the degree of skill they may reflect does not legally handicap either party. The plaintiff found them usable throughout. There is no evidence that the defendants warranted the plans or represented them to be anything that they were not. They did not enlarge the contractor's burdens or risks. Indeed, he made them a part of his promise. When they became part of the contract they represented what was agreed to.
If there was any lack of foresight reflected in the contractor's bid and contract price, it did not result in extra cost to the owner. This had been agreed on by the parties in the following language in the ...