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Narowetz H. & v. Co. v. Solar Sales

SEPTEMBER 6, 1967.




Appeal from the Circuit Court of Cook County; the Hon. BEN GORENSTEIN, Judge, presiding. Judgment affirmed.


Both plaintiff and defendants appeal from a judgment of the Circuit Court of Cook County in an action to foreclose a claim for a mechanic's lien on property owned by defendant Solar Sales, Inc., and used by defendant Solar Light Manufacturing Co., Inc.

The plaintiff filed its complaint to foreclose a mechanic's lien, alleging that the plaintiff had entered into a contract with Solar Light Manufacturing Co., hereinafter referred to as Solar Light, on January 14, 1963, for the installation of an air makeup system; that the plaintiff did install the system, completing it on April 26, 1963; that Solar Light has paid $13,050, leaving a balance of $4,150 due to the plaintiff. Solar Light filed an answer and counterclaim, alleging that its contract with the plaintiff required completion of the installation fifteen working days after receipt of Solar Light's purchase order dated January 14, 1963; that the plaintiff failed to complete the work within the time specified; and that Solar Light thereby suffered damages of $10,000. In a Bill of Particulars, Solar Light particularized its damages as (1) labor inefficiency costs; (2) overhead expenses; (3) excessive fuel costs and (4) extra cost for fans.

Subsequently, the plaintiff Narowetz filed a third-party complaint against Dravo Corporation, alleging the delivery of the Dravo unit to be used in the system for Solar Light was not made until January 25, 1963, even though Dravo Corporation promised its delivery on or about November 9, 1962. The complaint prayed for judgment against Dravo Corporation for the amount of any judgment awarded Solar Light.

On February 9, 1966, the trial judge entered an order to the effect that the material allegations of the complaint are true and that the plaintiff is entitled to have and recover from Solar Light the sum of $4,150 and interest; that the material allegations of the counterclaim of Solar Light are true and sustained to the extent of $1,250; that the material allegations of the third-party complaint are sustained to the extent of $250 and that, since Dravo Corporation had paid said sum to the plaintiff, it shall be dismissed from the proceedings; and that the plaintiff have a mechanic's lien on the property owned by Solar Sales, Inc., and used by Solar Light. The trial judge found that "there has been a breach of contract in this case," but he failed to specify the time of the breach or the time when the installation was completed. He further stated that "the damages shown are nebulous and intangible," adding that he was "going to allow damages for the breach of contract in the amount of $1,250.00 . . ." Upon objections by the defendants that the court should state the specific basis for the finding of damages, the trial judge stated that the evidence which he heard was "too nebulous and intangible to assess any damages in excess of that amount." The defendants appeal from this decree, praying that the judgment entered in favor of the plaintiff be reversed and remanded, with instructions to enter a judgment in favor of Solar Light for the full amount of its counterclaim. The plaintiff cross appealed, praying that the decree be affirmed in all respects, except that portion found as damages on the counterclaim. None of the parties have requested a new trial.

The facts are that the plaintiff, an Illinois Corporation engaged in the business of installing air systems, negotiated with a representative of Solar Light, for the installation of machinery which would replenish and warm air used in Solar Light's plant. On January 14, 1963, Solar Light accepted an offer made by the plaintiff which provided in part:

1. We agree to produce, furnish and install a system in accordance with the factory shop drawings . . . .

2. The system shall consist of one (1) Dravo Counterflow Gas Fired Furnace.

3. The furnace is identified as Model No. 325 Horizontal Arrangement, with base duct inlet, full modulation on the burner, F.I.A. approved on controls and piping. . . .

. . . . . .

7. . . . The system which we will furnish does not include the electrical wiring and starters.

12. We will initiate the work promptly following the receipt of your Purchase Order (dated January 14, 1963), and will complete the installation of the system within fifteen (15) working days thereafter.

There was evidence that Solar Light desired that the system be installed as soon as possible and that, since Dravo Corporation, the supplier of the furnace, had indicated that it would not be able to deliver the required equipment by the date desired by Solar Light, the installation would cost Solar Light an additional $800 because the fans needed for the system would have to be secured from a supplier other than Dravo.

Mr. Newhouse, an estimator and superintendent for the plaintiff, testified that he pulled his men from the job on February 15, 1963, and that there were only minor corrections which remained. Even though there is some conflicting testimony as to the time that a representative of Factory Insurance Association (F.I.A.) was called, it appears that the representative did inspect the system on April 19, 1963, and refused to approve it, finding a malfunctioning switch and an improperly connected vent. There is some conflicting testimony as to whether the corrections were contained in the original F.I.A. approved shop drawings. The representative ...

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