Appeal from the Circuit Court of DuPage County, Eighteenth
Judicial Circuit; the Hon. PHILIP F. LOCKE, Judge, presiding.
MR. PRESIDING JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.
This is a suit by the plaintiff, Leland Stahelin, against the Board of Education, School District No. 4, DuPage County, for a declaratory judgment that he had fully performed his contract to construct a new junior high school, and for a determination by the court of the balance which he claimed to be due him as general contractor on this project. The amount claimed included the balance due on the contract price and an additional sum for extra labor and materials furnished. The defendant claimed that a number of credits were due it under the construction contract. The trial court entered judgment for the plaintiff in the sum of $138,843.10, from which the defendant appealed.
This unfortunate incident began in the fall of 1962 when the defendant school board approved the plans of its architect, M.K. Young, for a new junior high school. All of the bids which were submitted on these plans were too high, and the architect was then authorized to alter the plans in an attempt to reduce the cost to between $1,000,000 and $1,1000,000. The plaintiff, whose original bid was $1,413,800 then made a bid of $1,181,500, which was low and was accepted. The construction contract was entered into on March 25, 1963. One portion of the school building which was to be occupied November 1, 1963, was completed December 1, 1963; the other to be occupied February 1, 1964, was completed March 1, 1964.
The record in this case is voluminous and the greater part of the evidence pertains to the extras claimed by the plaintiff contractor, and the credits claimed by the defendant school board. Without elaboration relative to the numerous exhibits and the substantial testimony offered in behalf of both parties, which supports our conclusion, it is abundantly clear that the present dispute, in a large part, was the result of the acts of the architect. There were some errors in the plans, which was not an unusual circumstance. These errors were the basis of some of the plaintiff's claim for extras.
However, the architect assumed an arbitrary and unreasonable attitude in his dealings with the contractor; and, it must be said, under the evidence, that the architect had the support and approval of a majority of the defendant board in this respect. This undoubtedly caused much of the trouble which ultimately led to this litigation.
The defendant, through its architect, claimed credits were due it under the contract for things either not done by the contractor or for alterations in the contract, in the sum of $73,312. However, the defendant's own expert on direct examination eliminated $61,644.20 of these putative credits, leaving a balance of $11,667.80. On cross-examination, it further appeared that defendant's experts, testifying from hearsay, assumed some items to be missing from the completed structure which, in fact, where incorporated therein. Ultimately, the trial court allowed the defendant's credits to the extent of $5,557.03 and itemized those items for which a credit was given. After a long and exhaustive examination of the record, we find that the determination of the trial court in this respect is adequately supported by the evidence and it will not be overturned or modified by us.
The most serious legal dispute arises with reference to the question of the extras claimed by the contractor, in the sum of $60,000. It is conceded that no evidence was presented relative to certain of these claimed extras. Such extras, and certain other of the claimed extras, which the plaintiff's evidence failed to sustain, including interest in the sum of $10,000, were disallowed. The court ultimately allowed the plaintiff's claim for extras in the sum of $44,196.34. The defendant presented no evidence relative to the values placed on the extras. It did not dispute that these extras were incorporated in the building. It claimed, however, that the plaintiff was not entitled to be reimbursed for the extras because of the manner in which they were authorized.
The defendant contends that sections 10-6 and 10-7 of the School Code (Ill Rev Stats 1965, c 122, pars 10-6, 10-7), preclude the plaintiff from recovering for the extras. Section 10-6 provides that no official business shall be transacted by the school board except at a regular or special meeting, and section 10-7 specifies that: "On all questions involving the expenditure of money, the yeas and nays shall be taken and entered on the records of the proceedings of the board." It is conceded that the expenditure for extras was not authorized by the school board by the taking of yea and nay votes nor was the payment of the claim for extras, as finally submitted, authorized in any manner.
The defendant also contends that the construction contract itself, bars the plaintiff from the right to recover for extras. The relevant portions of the contract are found in the General Conditions, and they are:
"A1-7 ARCHITECT'S SUPERVISION: The entire work shall be under the control and supervision of the Architect, M.K. YOUNG & ASSOCIATES. The Architect shall, in connection with his duties, give such interpretation, verbally or by writing or drawing, as in his judgment the nature of the work may require; in deciding on the quality of all workmanship and materials; in giving any certificate that the Contractor may be entitled to and in setting (sic) all deuctions (sic) from or additions to the contract price, which may result from any alteration of the design or changes of plans, or extra work, after the contracts have been let; also in determining the amount of damages which may accrue from any cause . . .
"(d) MODIFICATIONS: The Owner reserves the right to alter or modify the drawings and specifications in any particular, and the Architect shall be at liberty to make any reasonable amount of deviation in the construction, detail or execution without in either case, invalidating or rendering void the Contract. In case any such alteration or deviation shall increase or diminish the cost of doing the work the amount to be allowed to the Contractor or Owner shall be such as may be equitably and justly determined by the Architect."
"A1-17 EXTRAS: It is distinctly understood that no extra of any kind will be allowed, except such extra or extras as ordered by the Architect in Writing . . .
"(b) EXTRAS: Whereever (sic) in any protion (sic) of the specifications, authority is vested in the Architect or Engineer to approve extra work or changes or adjustment in the cost of the work, for whatever reason, or to approve extensions of time, it is understood that such authority is conditioned on prior approval, specifically and in each case, by the Owner and ...