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Tison & Hall Concrete Products v. A.e. Asher

AUGUST 4, 1967.

TISON & HALL CONCRETE PRODUCTS CO., INC., PLAINTIFF-APPELLEE,

v.

A.E. ASHER, INC., AND CHARLES BARFIELD, DEFENDANTS, A.E. ASHER, INC., DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Saline County; the Hon. TRAFTON DENNIS, Judge, presiding. Reversed in part and reversed and remanded in part.

MORAN, P.J.

This is an appeal by the A.E. Asher Co., hereinafter called Asher, from a judgment of the Circuit Court of Saline County, Illinois, in favor of the plaintiff in an action by a subcontractor's supplier of materials to enforce a lien on public funds due a general contractor.

Asher, a Chicago based general contractor, entered into a contract with the Illinois Department of Public Works and Buildings to construct a prison in Johnson County. On May 23, 1963, Asher and Charles Barfield, a mason contractor in Massac County, entered into a subcontract for the masonry work. Pertinent parts of the subcontract provide in part:

f. (Rider) All materials shall be charged to General Contractor, all receiving tickets shall be signed signed (sic) by Subcontractor and General Contractor, the amounts of the materials shall be paid directly to the supplier and Subcontractor by General Contractor, and these amounts shall be deducted from the Subcontractors (sic) amount. (Emphasis supplied.)

6. Contract Price. For the satisfactory performance of Subcontractor's obligations under this subcontract, Contractor agrees to pay Subcontractor the sum of (242,000) dollars. The said contract price is FIRM for the duration of the project and is not subject to escalation for sales tax or any reason whatsoever.

Barfield then entered into an agreement with the plaintiff, a supplier located in Saline County, under which the plaintiff furnished part of the material needed for the masonry work on the prison.

In all, the plaintiff furnished $29,712.77 of building material, issuing all of its bills, shipping tickets, and statements to Barfield. It did not bill Asher for any of the material furnished. Payments, made by checks of Asher, amounted to $11,167.15, leaving a balance of $18,545.62 due plaintiff.

After giving notice to the State of Illinois, the plaintiff filed a complaint, which was later amended, against both Barfield and Asher, seeking an accounting of the amount due the plaintiff and a decree that there be "a lien upon all money, bonds, and warrants due or to become due to the defendants or either of them which are now their possession of or under control of the Department of Public Works and Buildings," under Ill Rev Stats c 82, § 23. The complaint alleged that Asher had entered into a contract with the plaintiff by which

the plaintiff agreed to sell and deliver to the said defendant (Asher), building materials and concrete products, as the said A.E. Asher, Inc. might from time to time order through its subcontractor and agent, Charles H. Barfield, Sr., defendant herein, for the erection of the said Minimum Security Prison, at the usual and customary price for such material at the time and place the material was delivered, which contract was made in the City of Harrisburg in the County of Saline and State of Illinois;

that, in accordance with the terms of the contract, the plaintiff furnished to Asher, through Barfield, building materials and concrete products for the construction of the prison; and that certain sums remain unpaid. In an answer to an interrogatory by Asher, the plaintiff stated that an oral contract was entered into in July, 1964, at the plaintiff's place of business.

After a non-jury trial, the judge ordered that the plaintiff "have and recover from defendants, A.E. Asher, Inc., and Charles H. Barfield, Sr., the sum of ($18,545.62)" and decreed that the plaintiff shall have a lien for such an amount "Upon the money, bonds or warrants due from the State of Illinois . . . to the contractor defendant, A.E. Asher, Inc.," having found (1) that Asher and Barfield had entered into a contract which provided that Asher would pay for all materials directly to the supplier and (2) that Asher "promised to pay the plaintiff for said materials so furnished by the plaintiff in the construction of the facility." Only the defendant Asher appeals from this order.

The defendant first contends that the trial court erroneously denied its motion to dismiss or transfer the case for lack of venue, which was supported by an affidavit signed by A.E. Asher that no part of the transaction out of which the cause of action supposedly arose took place in Saline County. However, the plaintiff's verified complaint stated that a contract was made between it and Asher, "which contract was made in Harrisburg in the County of Saline and State of Illinois." Since no evidence had yet been heard at the time the court ruled upon the motion and since the court had before it only the plaintiff's verified complaint and the defendant's verified motion, the court would have no way of knowing the truth of the allegations at that time and, therefore, did not err in overruling the defendant's motion at that stage of the proceedings.

The defendant next contends that the court erred in granting a money judgment, arguing that no such relief was requested in the plaintiff's complaint. The trial court ordered that the plaintiff "have and recover" from both defendants the sum due to it for material supplied. We construe this to constitute a money judgment, even though the plaintiff states in its brief that "plaintiff did not ask for a money judgment, nor did it get one."

It is well established in Illinois that a judgment must conform to and be supported by the pleadings and proofs of the case. Sharkey v. Sisson, 310 Ill. 98, 141 NE 427; Kohler v. Kohler, 326 Ill. App. 105, 61 N.E.2d 687; Seaburg v. Williams, 23 Ill. App.2d 25, 161 N.E.2d 576. In this case, there was no ...


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