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Senese v. City of Chicago

OCTOBER 2, 1967.

CARMEN SENESE AND LOUIS SENESE, D/B/A OGDEN CARTAGE COMPANY, PLAINTIFFS-APPELLANTS,

v.

CITY OF CHICAGO, A MUNICIPAL CORPORATION, AND JOHN F. WARD, PURCHASING AGENT, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. WALKER BUTLER, Judge, presiding. Reversed and remanded.

MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT.

Plaintiffs appeal from a dismissal of their amended complaint.

According to the amended complaint, plaintiffs were in the cartage business under the name of Ogden Cartage Company. One of the plaintiffs, Carmen Senese, was employed by the City of Chicago as a tree trimmer. The City invited bids, as set out in Exhibit A, *fn1 for the hire of truck services; on April 22, 1964, the plaintiffs submitted sealed, written proposals (the form of which was set out in Exhibit A)*fn1 which were accepted by the defendants; pursuant to the terms and conditions of these proposals a priority of call was established by defendants, and plaintiffs were assigned priority numbers for three different types of truck services. Plaintiffs performed until July 8, 1964, when they were informed that because of a conflict of interest on the part of Carmen Senese, one of the plaintiffs and an employee of the City of Chicago, the City would no longer do business with plaintiffs. The prayer of the amended complaint was for a declaration that no conflict of interest exists and that the court declare the right of the plaintiffs to submit proposals, be assigned a priority on the basis of said proposal, and to be called from said priority list.

Since Exhibit A was not attached to the amended complaint defendants could have moved for a dismissal under section 45 of the Civil Practice Act for failure to set out the written instrument sued on. Instead, defendants moved to dismiss on the same grounds stated in their motion to dismiss the original complaint. (The amended complaint was a restatement and exact reiteration of the original complaint except that in Count II an allegation of fraud was added.) The motion stated in pertinent part:

1. That the theory of the complaint is founded on a contract by which on the face of the complaint fails to state a competent covenant for the following reasons:

(a) That it is patent on the face of the complaint and exhibit attached thereto that there was no offer and acceptance under the rule of law encompassing bids. (Emphasis supplied.)

(b) That it is patent on the face of the complaint there is no consideration.

(c) That it is patent on the face of the complaint that the plaintiff never circumscribed any of his future actions.

(d) That the complaint failed to allege any specific work to be performed.

On appeal one of defendants' theories of the case is that plaintiffs' amended complaint fails to state a cause of action because it is in violation of section 36 of the Civil Practice Act in that it does not set forth the written instruments upon which plaintiffs' claim is founded.

In Clegg v. Gould, 314 Ill. App. 670, 42 N.E.2d 315, the court held that a contention that plaintiff failed to attach to his complaint a copy of the written contract upon which the action was based, not having been raised in the trial court, cannot be urged on appeal.

Under section 45(2) of the Civil Practice Act the motion to dismiss "must specify wherein the pleading . . . is insufficient." In Admiral Oasis Hotel v. Home Gas Industries, 68 Ill. App.2d 297, 216 N.E.2d 282, the court stated on page 304:

Several decisions have held that a motion to dismiss cannot be allowed where specific grounds are not set forth. Hitchcock v. Reynolds, 278 Ill. App. 559 (1935); Central Illinois Electric & Gas Co. v. Scully, 17 Ill.2d 348, 161 N.E.2d 304 (1959). An obvious companion to such a rule is that grounds not specified in the motion to dismiss cannot be urged on appeal.

In the instant case defendants failed to specify in their motion to dismiss that the written instrument sued on was not attached to or recited in the amended complaint and ...


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