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Jason v. Drane

MAY 13, 1968.




Appeal from the Circuit Court of Cook County; the Hon. DONALD J. O'BRIEN, Judge, presiding. Affirmed.


Rehearing denied June 21, 1968.

Plaintiff appeals from a decree of the Circuit Court of Cook County, Illinois, which set aside a contract for repair of fire loss damage and awarded plaintiff a portion of the proceeds of certain fire insurance settlements upon a quantum meruit basis.

Plaintiff asserts that the determination of the court was contrary to the manifest weight of the evidence, and that although the cause was referred to the Master in Chancery under a limited reference, the Master in Chancery took evidence on matters beyond the scope of the order of reference, and based his findings on such matters. Plaintiff urges that the court erred in adopting the Master in Chancery's report on the matters outside of the scope of the reference.

The complaint alleged that plaintiff is a general building repair contractor who does business under the name Fire Loss Appraisal Company; that defendants, Milton Drane and Priscilla Drane are contract purchasers of a building known as 4800 South Princeton Avenue, Chicago, Illinois; that subsequent to a fire which occurred December 7, 1960, plaintiff and defendants entered into a contract in writing by which plaintiff was to repair the fire damage and was to receive therefor an amount equal to the fire loss claim; that defendants agreed to pay plaintiff the amount equal to the settlement agreed upon between plaintiff and representatives of the insurance companies; that plaintiff completed the work agreed upon; that the fire insurance companies issued drafts in the total sum of $5,733, which were payable to the owners, plaintiff and plaintiff's attorney; that plaintiff alone is entitled to the drafts; that defendants, Milton Drane and Priscilla Drane refuse to endorse the drafts and that plaintiff is without remedy except in a court of equity.

The original answer asserted that the contract was obtained by fraud and misrepresentation; that defendants did not understand the contract; that the work was improperly done and was not completed, and that defendants had to expend large sums to have the work completed. By amendment to the answer made after the taking of some of defendant Milton Drane's testimony, it was alleged that in August of 1960, Milton Drane became ill of hypertension and a nervous disorder, that he had been a mental health patient under the care of Dr. Harold M. Visotsky, and that he received treatment as a mental health patient on September 15, 1960, October 15, 1960, October 17, 1960, October 21, 1960 and December 21, 1960, at the Southside Community Health Center. It alleged that since said dates he has been a patient at various Veterans' Hospitals for psychiatric and medical treatments. It specifically alleges that on December 7, 1960, when the contract was signed, Milton Drane did not have the mental capacity to understand what he was signing.

Under the order of reference to the Master in Chancery, the authority was "limited solely to the issue of fraud in the obtaining by plaintiff of contract from the defendants Drane." Motions by defendant for an unrestricted reference were denied.

The Master in Chancery received testimony on the circumstances of the execution of the contract, the work performed by plaintiff and subcontractors, the quality of the work performed, the work done at the expense of defendants, the work remaining undone and the mental condition of the defendant, Milton Drane.

The Master's report includes the following findings:

"4. The Master further finds that on December 7, 1960, the building at 4800 Princeton Avenue caught afire about 8:30 A.M. The Plaintiff called upon the Defendant about 9:00 A.M. and secured his signature upon the promise to make temporary repairs so he could have heat in the zero weather.

"8. (c) About August 15, 1960, Milton Drane was compelled to leave his employment on account of illness, and has not been able to do any work since that time up to the present time.

"(d) On December 7, 1960, he was home ill at the time of the fire.

"(e) Dr. Harold Visotsky, on October 5, 1960, made a report of his diagnosis of Milton Drane as follows:

"`Mr. Drane appears to be suffering from a Chronic Paranoid Schizophrenic reaction with much reoccupation with physical symptomatology. This appears to be well encapsulated and relates only to a multitude of physical complaints vaguely associated with a surgical procedure in 1957. He states these symptoms do not affect ...

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