Appeal from the Circuit Court of Cook County; the Hon.
NICHOLAS J. BUA, Judge, presiding. Reversed and remanded with
MR. PRESIDING JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
Plaintiff, Consolidated Construction Co., appeals from an order which struck plaintiff's three-count third amended complaint and dismissed the action as to all defendants with prejudice. Defendants cross-appeal from the denial of their motions for orders directing plaintiff to pay defendants reasonable attorneys' fees and costs, pursuant to section 41 of the Civil Practice Act.
As plaintiff has withdrawn Count II from the appeal, the determinative issue is whether Counts I and III of plaintiff's third amended complaint state causes of action. The pertinent paragraphs of each count are set forth in detail.
2. That prior to August 2, 1960, Great Lakes and Newberg, Defendants, entered into certain contracts with Algonquin and United, Co-Defendants, to furnish labor, materials and equipment in the construction and installation of an underground utility system and apurtenant structures in the United Airline Executive Building and Education and Training Center at O'Hare Field, in the City of Chicago, County of Cook and State of Illinois, which details of "Construction" are unknown to the Plaintiff.
3. That the Plaintiff, Consolidated, on or about August 2, 1960 was the owner of considerable building materials described as vitrified tile pipe, concrete pipe, precast concrete manholes, Redi-Mix concrete, gravel bedding, Portland cement and said, manhole blocks, and cast iron pipe and fittings, all of which was located at or near the property of the Defendant, United, at O'Hare Field by a site on which a building was to be constructed which would be known as the United Air Line Executive Building and Education Training Center.
4. That the Defendant, Great Lakes, with the knowledge and consent of the Defendants, Newberg, Algonquin and United, unlawfully used and converted said materials described in Paragraph 3, to the use of Great Lakes in the course of performing its contracts with Newberg, Algonquin and United in the construction of the building to be known as the United Air Line Executive Building and Education and Training Center at O'Hare Field. That the Defendants knew that said material belonged to the Plaintiff.
5. That subsequent to August 2, 1960, Plaintiff on numerous occasions, demanded of Defendants to return said material and equipment to the Plaintiff, but the Defendants willfully failed and refused and still willfully fail and refuse to return said materials, merchandise and equipment, or to pay the reasonable value thereof.
6. That the value of said property is $40,000.00.
Wherefore, Plaintiff prays for judgment in the sum of Forty Thousand Dollars ($40,000.00) against the Defendants, Great Lakes, Algonquin, United and Newberg in favor of the Plaintiff.
[Paragraphs 1 through 3 are realleged.]
4. That the Defendant, Great Lakes, with the knowledge and consent of the Defendants, Newberg, Algonquin and United used said material in the course of performing its contracts with Newberg, Algonquin and United, well knowing said materials to belong to the Plaintiff and knowing that Plaintiff had a large investment in said material.
5. That subsequent to August 2, 1960, the Plaintiff on numerous occasions has demanded of Defendants that they pay the reasonable value of the material and equipment to the Plaintiff, but the Defendants ...