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William B. Lucke, Inc. v. Spiegel

DECEMBER 16, 1970.

WILLIAM B. LUCKE, INC., PLAINTIFF,

v.

G.B. SPIEGEL ET AL., DEFENDANTS AND THIRD PARTY DEFENDANTS-APPELLANTS. — (HI-LITE CONSTRUCTION CO., A DIVISION OF JO-SU, INC., DEFENDANTS AND THIRD PARTY PLAINTIFF-APPELLEE.)



APPEAL from the Circuit Court of Cook County; the Hon. RAYMOND E. TRAFELET, Judge, presiding.

MR. PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

Third-party defendants (hereinafter referred to as defendants) appeal from the judgment confirming an arbitration award in favor of third-party plaintiff (hereinafter referred to as plaintiff).

On December 23, 1965, defendants executed a contract with plaintiff for renovation of certain premises damaged by fire and weather. Article 3 of the contract provided:

"CONTRACT SUM — The Owner [defendants] shall pay the Contractor (plaintiff) for the performance of the Contract subject to the additions and deductions provided therein in current funds, the sum of FORTY EIGHT THOUSAND SIX HUNDRED TWENTY FIVE dollars. ($48,625.00) FINAL CONTRACT PRICE BASED ON TIME & MATERIAL NOT TO EXCEED AMOUNT SHOWN (T & M BASED ON 10% OVERHEAD, 12% PROFIT)"

The contract further provided that any controversy arising out of its terms was to be submitted to arbitration under the Rules of the American Arbitration Association. Pursuant to this provision a controversy as to the balance due plaintiff was submitted to arbitration on September 18, 1967.

During the arbitration of the above matter, William B. Lucke, Inc., a sub-contractor involved in renovation and repair of defendant's premises, filed suit on October 10, 1967, against defendants for moneys due and owing it. Subsequently, plaintiff was made an additional party defendant. Before a final adjudication of the prime cause of action, the arbitrators issued their award in the controversy between plaintiff and defendant. The award provided:

"A. An award in the amount of $17,883.04 is made in favor of the claimant, HI-LITE CONSTRUCTION DIVISION OF JO-SU, INC. (plaintiff), the details of which are as follows:

Contract price ................................ $48,625.00 Extras allowed ................................ 26,041.92 __________ Total $74,666.92 Less allowances ............................... - 8,721.00 __________ Remainder $65,945.92 Payments made by Respondent (defendants) ...... $49,257.00 __________ Total $16,688.92 Less back charges allowed ..................... 544.61 __________ Balance $16,144.31 Plus 6% interest from March 1, 1967 to November 30, 1968 .......................... $ 1,738.73 TOTAL amount of Award if paid by November 30, 1968 .......................... $17,883.04" ===========

The award further provided that defendants were to pay a reimbursement of $231.12 for plaintiff's advancement of costs plus 6% interest from December 1, 1968, until the award is paid.

On December 31, 1968, plaintiff filed its third-party action against defendants in the pending cause instituted by Lucke. Plaintiff alleged the arbitration award and prayed for judgment thereon. Defendants moved to strike plaintiff's third-party action, but the motion was denied.

On April 10, 1969, the court entered judgment in favor of Lucke and against plaintiff and defendants in the aggregate sum of $2,281.16. Subsequently, on June 20, 1969, the court entered judgment in the third-party action in the amount of $16,607.54 *fn1 thereby confirming the arbitration award in favor of plaintiff and against defendants. Defendants appeal and contend that the court erred in confirming the arbitration award and in failing to vacate it for the following reasons:

(1) The arbitrators erred in their conclusion as to the amount of the basic contract price in that;

(a) their conclusion was against the manifest weight ...


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