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County of Will v. Woodhill Enterprises

OCTOBER 13, 1971.

THE COUNTY OF WILL ET AL., PLAINTIFFS (NATHAN MANILOW, ADDITIONAL PLAINTIFF-APPELLEE),

v.

WOODHILL ENTERPRISES, INC. ET AL., DEFENDANTS (UNITED BONDING INSURANCE COMPANY OF INDIANAPOLIS, INDIANA, DEFENDANT-APPELLANT, PULLMAN BANK AND TRUST COMPANY, ADDITIONAL DEFENDANT, AND FRANKLIN W. KLEIN, SPECIAL ADMR., ADDITIONAL DEFENDANT-APPELLEE.)



APPEAL from the Circuit Court of Will County; the Hon. MICHAEL A. ORENIC, Judge, presiding.

MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 4, 1971.

This is an appeal by United Bonding Insurance Company from a judgment of the circuit court of the Twelfth Judicial Circuit, Will County, Illinois, in favor of Nathan Manilow in the amount of $48,360, plus interest from the date the suit was filed by the county of Will and the Township Highway Commissioner of Monee Township and a judgment of said court in favor of the Estate of Gray in the amount of $31,937.10 plus interest from the date suit was filed by the Estate of Gray. The court further found in favor of the Monee Township Highway Commissioner and that he would be entitled to damages in the amount awarded to Nathan Manilow; but that because of certain assignments of his rights to said damages no judgment for damages was awarded to the Highway Commissioner.

In 1959, Defendant, Woodhill Enterprises, Inc. was formed for the purpose of subdividing and developing real estate located in Monee Township, Will County, Illinois. The officers of Woodhill Enterprises, Inc. were Messrs. Kritzik, Rosenthal and Samson. Prior to the time that Woodhill Enterprises, Inc. was incorporated, these three gentlemen purchased through affiliated companies about 1200-1300 acres of land in Will County which they intended to develop.

The land to be developed was divided into four subdivisions, namely, Woodhill-Ridgeview Subdivision, Woodhill-Ridgeview First Addition, Woodhill-Ridgeview Second Addition and Woodhill-Ridgeview Subdivision Third Addition (hereinafter referred to as the original subdivision and first, second, and third additions). Woodhill Enterprises, Inc. began development of the subdivisions; but due to financial problems, it was unable to complete the project.

In 1961 and 1962, Woodhill Enterprises, Inc. as principal, and United Bonding Insurance Company, as surety, executed four subdivider bonds, which bonds guaranteed the performance of certain contracts entered into between Woodhill Enterprises, Inc. and the Township Highway Commissioner of Monee Township. The bonds were for the original subdivision and first, second and third additions and were in the penal sum of $56,000, $53,000, $19,000 and $13,000, and were dated April 29, 1961, July 7, 1961 and April 12, 1962 respectively.

On March 9, 1965, the County of Will and the Township Commissioner of Monee Township instituted suit against Woodhill Enterprises, Inc. and the United Bonding Insurance Company, claiming that under the terms of its contracts, Woodhill Enterprises, Inc., agreed to lay out and pave certain streets in the subdivisions and that Woodhill Enterprises, Inc. breached its contracts since it did not complete the streets in the first, second and third additions. The Plaintiffs prayed for judgment in the full penal sums of the bonds, namely, $53,000, $19,000 and $13,000.

Joseph A. Schudt and Associates prepared plans and specifications for the completion of the streets in the first, second and third additions in May, 1965, solicited bids therefor and thereafter in the fall of 1965, the Monee Township Highway Commissioner entered into a contract with the lowest bidder, Gallagher Asphalt Corp., for the contract price of $48,365 and Gallagher Asphalt Corp. completed the contract.

To obtain funds to pay Gallagher Asphalt Corp., the Monee Township Highway Commissioner entered into an agreement with Pullman Bank and Trust Company, whereby the Pullman Bank and Trust Company agreed to pay the Gallagher Asphalt Corp. through the Superintendant of Will County Highways, the contract price of $48,365 in consideration of the Monee Township Highway Commissioner assigning his rights in the cause of action against Woodhill Enterprises, Inc. and the United Bonding Insurance Company, and assigning his rights in and to the bonds upon which suit was founded. The Gallagher Asphalt Corp. was paid $48,365 by the Superintendent of Will County Highways from funds received from the Pullman Bank and Trust Company. The Pullman Bank and Trust Company was the owner of a number of lots in the subdivision, having obtained title through mortgage foreclosure procedure.

On March 30, 1966, the Pullman Bank and Trust Company sold its interest in the subdivisions to Nathan Manilow, and on that same day, Pullman Bank and Trust Company and Nathan Manilow entered into an agreement whereby the Pullman Bank and Trust Company assigned to Nathan Manilow any rights the Pullman Bank and Trust Company had obtained from the previous assignment by the Monee Township Highway Commissioner to Pullman Bank and Trust Company.

On December 14, 1966, Nathan Manilow was joined in the proceedings as an additional plaintiff and brought suit against Woodhill Enterprises, Inc., United Bonding Insurance Company and the Pullman Bank and Trust Company. The Pullman Bank and Trust Company was ultimately dismissed as a defendant.

Manilow's suit was predicated on the assignment he had received from the Pullman Bank and Trust Co. on March 30, 1966.

On January 3, 1968, the Executors of the Estate of Collin D. Gray filed a suit against the Woodhill Enterprises, Inc. and the United Bonding Insurance Co. claiming that Gray had constructed streets in the original subdivision, first and second additions and later the third addition, and the sum of $86,979.13. This suit was joined with the present suit and Gray was made a party hereto.

At the time of the trial, Messrs. James McCarthy, who was Will County Highway Commissioner at the time this cause of action arose, and Christ Holl, Monee Township ...


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