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Weather-gard Industries v. Fairfield S. & L.

APRIL 21, 1969.

WEATHER-GARD INDUSTRIES, INC., PLAINTIFF-APPELLANT,

v.

FAIRFIELD SAVINGS & LOAN ASSOCIATION, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. WALTER J. KOWALSKI, Judge, presiding. Reversed and remanded with directions.

MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT.

This appeal is taken from a summary judgment entered in the Circuit Court in favor of the defendant, based solely on the pleadings and sworn statements contained in answers to interrogatories and on the deposition of plaintiff's president. The plaintiff, Weather-Gard Industries, Inc. (hereinafter referred to as Weather-Gard), had filed a complaint in four counts *fn1 against the defendant, Fairfield Savings & Loan Association (hereinafter referred to as Fairfield) for breach of contract to provide financing for home improvements.

In Count I of its amended complaint, Weather-Gard alleged that it had completed four home improvement contracts with its customers entitling it to receive funds which Fairfield offered to provide with respect to each account. In Count II plaintiff complained that Fairfield refused to provide financing for 26 additional home improvement contracts which plaintiff had partially fulfilled in reliance upon Fairfield's promise to provide financing. Plaintiff alleged in Count III that Fairfield required plaintiff's president to execute an invalid contract under conditions amounting to duress, whereby Fairfield unlawfully withheld over $52,000 from an $82,000 "reserve fund" on executed home improvement contracts.

It is necessary to set out the pleadings in some detail. The plaintiff alleged in Count I that in accordance with the usual, customary and normal procedure, it secured sales contracts for remodelling jobs from four named customers. Various notices from Fairfield were sent to these customers for home improvement loans, copies of which were sent to Weather-Gard indicating the credit of the customers to be satisfactory and indicating defendant's intentions to make the loan by disbursing the funds when all necessary documents, including a certificate indicating that the work had been completed, were received in proper order. Based upon the intent and offer of the defendant, plaintiff completed all the work and delivered the various documents requested by the defendant, but defendant returned the documents and refused to pay plaintiff the sum due under said contracts. It was further alleged that a contract existed between the parties by virtue of the offer of defendant by sending advance notices to the applicant and dealer for a home improvement loan and the acceptance thereof by the customer and plaintiff; or, in the alternative, that by virtue of a course of dealing in accordance with the usual, customary and normal procedure a contract exists between the parties by virtue of plaintiff's performance based upon the intent of defendant to disburse the funds upon completion of the work; or, in the alternative, the defendant should be estopped to deny that a contract exists between the parties, having placed plaintiff in the position of completing the work after indicating defendant's intention to make the loan.

Count II realleges the foregoing allegations and sets forth 26 additional contracts under which plaintiff had expended substantial amounts of time and money. It alleged that plaintiff was ready, willing and able to complete all of the work and to deliver all the necessary documents upon completion of the work; that all the contracts and contract purchasers were approved by defendant in writing and defendant agreed to accept the loan on completion of the work prior to the commencement of any work by plaintiff; and that plaintiff commenced work on each of said contracts, but subsequent to the commencement of said work and after expenditures were made by plaintiff, defendant notified plaintiff that defendant would not accept such approved "deals." As a result of the unilateral action of defendant, the plaintiff alleges that it suffered damages and loss of profit.

In Count III plaintiff sought to nullify a "reserve agreement" which provided that 10% of each loan, except F.H.A. loans, were to be withheld by defendant until final cash disbursement of the gross amount of the contract. Weather-Gard alleges that because there was an absence of consideration and because they had agreed to Fairfield's terms under duress, the "reserve fund" should be returned.

The defendant filed an answer to all counts of the complaint. In its answer to Count I Fairfield denied that a contract existed between plaintiff and defendant by virtue of an offer by defendant in the form of sending of advance notices to the loan applicants and plaintiff, and denied acceptance thereof by the applicant or plaintiff. The defendant further denied that its dealings with plaintiff gave rise to a contract between it and plaintiff and denied that a contract to purchase said notes existed by virtue of plaintiff's performance based upon defendant's intention to disburse funds upon completion of work and presentation of documents. The defendant further denied that plaintiff is entitled to invoke an estoppel against it thus denying it the right to deny the existence of a contract by virtue of plaintiff's having allegedly completed the work under its various contracts on the strength of defendant's intentions in the advance notice.

The defendant answered Count II of Weather-Gard's complaint by denying that there was at any time an offer pending, in the form of said advance notices, or that said advance notices constituted an offer by the defendant, that its dealings with plaintiff gave rise to a contract between it and plaintiff, and that a contract to purchase said notes existed by virtue of plaintiff's partial performance based upon disbursed funds upon completion of work and presentation of documents; denied that plaintiff was ready, willing and able to complete all the work as described or that plaintiff suffered losses. The defendant further denied that plaintiff is entitled to invoke an estoppel against it.

Fairfield's answer to Count III denied that default occurred on only a few contracts or that it unjustly or unlawfully holds a reserve balance of $52,000 or that plaintiff is entitled to same. Defendant denied that plaintiff is entitled to documents on the defaulted contracts. Further answering, defendant stated that the rights and remedies of the parties are as set forth in the reserve agreement and not otherwise.

The defendant also set up an affirmative defense to the first two counts of the plaintiff's complaint. Briefly stated, the defendant maintains that no contract exists by reason of the advance notice documents in that there was never any offer intended by the defendant to purchase said loans by virtue of said documents; that the advance notice document was merely an expression of defendant's approval of credit of the borrower and no more than an invitation for an offer by plaintiff; that notwithstanding any course of dealings, defendant never intended to enter into a contract with plaintiff with respect to the purchase of said loans; that there was no mutuality of contract existing between the parties with respect to an agreement to purchase the contracts; and that the defendant's refusal to purchase the notes and contracts was conditional upon plaintiff's nonperformance on previous job complaints. A reply was filed to the affirmative defense by plaintiff.

The question before this Court is whether the trial court properly entered a summary judgment against the plaintiff. The right to the entry of a summary judgment is created by statute (Ill Rev Stats 1967, c 110, § 57, supplemented by rules 191 and 192 of the Supreme Court, Ill Rev Stats 1967, c 110A, §§ 191, 192). Summary judgment procedure is intended to avoid the expense and delay of a trial where there are no issues of fact, and such judgment can only be granted where there are no triable issues before the court. Section 57 of the Civil Practice Act provides that the plaintiff or defendant may move for a summary judgment with or without supporting affidavits for all or any part of the relief sought; that the opposite party may file counteraffidavits, and that judgment shall be rendered if the pleadings, depositions and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Printing Mach. Maintenance v. Carton Products Co., 15 Ill. App.2d 543, 147 N.E.2d 443.

In the case at bar, the plaintiff contends that the trial court erred in granting defendant's motion for summary judgment on the ground that the present case provides a classic example of a unilateral offer which ripens into a contract when the promisee partially or completely performs the acts required of him and that there was a valid contract as a matter of law. The offer, plaintiff maintains, is contained in the advance notice Fairfield sent to the plaintiff's customers. A copy of this notice was customarily sent to the plaintiff as well. The notices read:

We have found the credit of ____ to be satisfactory for the net amount of $____ for ____ months under Title 1 of the National Housing Act. Then appears a heading "Weather-Gard Ind." Under this heading it is stated "The face amount of the note will be $____ which includes finance charges and will be payable in installments of $____ per month. It is our intention to make this loan by disbursing the funds to you when all necessary documents including a certificate indicating the work has been completed, are received in proper order, but not earlier than six days from this date. If you have any questions regarding this transaction, or if we can be helpful in any way, kindly let us hear from you within six days from this date.

The defendant, Fairfield, argues, however, that its offer is a conditional offer made to a customer of the plaintiff, not to the plaintiff. "A plain reading of the `notice' reveals that it is not addressed to the plaintiff." However, the exhibits show that 16 of the 30 notices attached to the amended complaint are specifically directed "To Weather-Gard" and contain the heading "Advance Notice of Approval to ...


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