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A.h. Sollinger Const. Co. v. Illinois Bldg. Auth.

MAY 24, 1972.

A.H. SOLLINGER CONSTRUCTION COMPANY, INC. ET AL., PLAINTIFFS-APPELLANTS,

v.

ILLINOIS BUILDING AUTHORITY ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Kane County; the Hon. JOHN S. PETERSEN, Judge, presiding. MR. JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:

Plaintiffs, who entered into a joint venture to act as general contractor for the construction of a building now housing the Appellate Court of Illinois, Second District, brought this action in the Circuit Court of Kane County seeking to recover money allegedly due them under the venture. Their complaint, presenting multiple and alternative theories of recovery, named as defendants the Illinois Building Authority, owner of the building; Lundeen, Hilfinger & Asbury, the architects; and Classic Tile Company, a subcontractor which had laid the brick surface of front and rear courtyards. Trial was by jury and plaintiffs here appeal from an order directing a verdict for Classic Tile at the close of all the evidence, and from a judgment entered on a jury verdict in favor of the Authority and the architects.

The building was accepted by the Authority as substantially completed in August, 1966, subject only to a specific list of items, including the courtyards, to be completed, corrected or repaired. At the same time, final payment of $35,000.00 on the contract price was withheld pending the satisfactory completion of the items on the list and the resolution of claims that had been made by subcontractors and material-men. Before final settlement was accomplished difficulties arose with the brick surface covering the courtyards. Subsequent to the winter of 1966-1967 it was noted that in many diverse areas the mortar in the joints between the bricks had deteriorated, chipped and fallen out, leaving holes. The Authority notified the architects and the plaintiffs, and the latter, in turn, unsuccessfully sought to have Classic Tile return to correct the work.

Further deterioration occurred during the winter of 1967-1968, and when plaintiffs had done nothing other than to remove the loose mortar, the Authority, after due notification to plaintiffs, and, as permitted under the terms of the contract, employed Western Waterproofing Company, at a cost of $12,225.00, to repair the defective areas. After Western had been employed, and in accordance with the general contract, plaintiffs were notified that they would be "back charged" for the cost of the repair work against the balance due under the contract. The present action followed. In this appeal, plaintiffs principally contend that the trial court erred in directing a verdict for Classic Tile and that the verdict in favor of the Authority and the architects was against the manifest weight of the evidence.

We deem it expedient to first consider the contentions advanced with respect to Classic Tile and the architects, which contentions bring into focus the allegations of plaintiffs' complaint and the proof introduced to sustain them. Count II of the complaint, directed against Classic Tile, alleged, in pertinent part, that the subcontractor had not performed the paving of the courtyard in a workmanlike manner, or in accordance with the specifications in the subcontract; that the fault and responsibility for the defects was that of Classic Tile; and that under the terms of the subcontract Classic Tile was required to indemnify plaintiffs for the back charge incurred because of the former's defective work.

Count III, pleading a cause of action against the architects, alleged, in substance, that the architects had a duty to specify a mortar mix capable of withstanding the elements to which the courtyards would be exposed; that they negligently and carelessly selected a mortar mix which was inadequate for the purpose intended; that they negligently and carelessly failed to prescribe the use of vapor barriers or other devices or techniques which would have prevented the deterioration of the mortar joints; and that as a result of such wrongful conduct plaintiffs had suffered damages in the amount of $50,000.00. The respective answers of the defendants denied the foregoing allegations. Classic Tile also alleged, as an affirmative defense, that it had objected to the use of the mortar mix specified but had been more or less coerced into using it by representatives of the plaintiffs and the architects.

The principal witnesses for plaintiffs were Dean F. Hilfinger, one of the architects who was called as an adverse witness; Albert H. Sollinger, president of one of the construction companies which had entered into the joint venture; and Robert F. Duggan, president of the other joint venturer, whose company supervised the actual construction. Classic Tile and the architects presented no proof whatsoever, while the Authority introduced only certain exhibits and the testimony of David R. McNulty, is regional construction director.

From the record, it appears that the design for the exterior courtyards called for vertical brick walls and brick surfaces and, relative thereto, the architects specified: "* * * all masonry work shall be laid in lime and cement mortar composed of one part Portland cement, two parts lime and seven parts sand * * * In lieu of the lime cement mortar above specified, the contractor shall be permitted to use Medusa, Universal or approved equal prepared mortar." We note that it appears from the record that the prepared mortars are mixed with sand and water at the construction site in proportions as directed by the manufacturer. The base of the courtyards was a four and one-half inch concrete slab poured over gravel, and the method for installing the brick surface was that a bed of mortar would be placed on the top of the concrete slab, that bricks and half bricks would be set in the mortar bed, and that the space between the bricks would then be filled in, or topped, with mortar to form a joint. When the desired result is achieved, the mortar in the topping unites with the mortar in the bed to form a solid masonry bond. In regard to the latter step in the process, the architects specified that the topping in the mortar joints should be installed to a thickness, or width, of one-half inch.

It should here be noted that brick masons and tile setters, two separate crafts, use different methods in finishing mortar joints. The former use a tool to compress mortar into the space between the bricks and to level it off even with the top of the bricks, making what is called a "tooled joint." Tile setters, on the other hand, use burlap or some similar material to rub the joint, thus creating some pressure on the mortar in the joint and cleaning excess mortar from the surface. This method produces what is termed a "rubbed joint." According to the two witnesses who testified on the subject, a tooled joint is greatly superior to a rubbed joint.

The vertical walls in the courtyards were erected by a mason subcontractor, who used Medusa. April Tile Company was originally engaged to lay the brick surfaces, but, for reasons not shown in the record, April Tile was replaced by Classic Tile. It appears that tile companies, rather than brick masons, were engaged to lay the surfaces due to jurisdictional rules of the labor unions involved. Just who made the selection of Medusa under the options given in the specifications was never made entirely clear, but it was, in any event, being used for the exterior courtyard work when Classic Tile came into the picture. There was testimony that Classic Tile "objected" to Medusa and "preferred not to use it" for the surface work, but that it did so at the insistence of representatives of the plaintiffs and the architects. The record is devoid of proof as to the reason or reasons why Classic Tile objected to and preferred not to use the product.

Proof fairly relating to the issue of whether Classic Tile had been guilty of poor workmanship may be said to have fallen into two classes, namely, direct and circumstantial. In the latter category, for instance, there was testimony that at the outset of the surface paving a representative of the manufacturer of Medusa spent a day at the project to show Classic Tile employees how its product should be mixed. The mortar mixed on this occasion was used in the northeast corner of one of the courtyards and, according to the testimony of Hilfinger, there was and had been no deterioration in that area. Closely related to the latter circumstance, and taking into consideration that not all of the Medusa was mixed at one time, is proof which shows that some of Classic Tile's work deteriorated while other parts did not. Likewise, of a circumstantial nature, it was shown that Western Waterproofing had done its repair work with Medusa, and that such repair work had not deteriorated, except in some spots where it thinly overlapped the original work of Classic Tile. It is to be noted, also, that Western tooled the joints rather than rubbing them.

• 1 In the category of direct proof, Hilfinger testified that an examination made shortly after the deterioration started revealed, in some of the defective areas, that the topping of the joints was one-eighth of an inch or less, rather than the one-half inch specified. According to Hilfinger's further testimony, if the topping is less than one-half inch it will dry out too quickly, preventing cohesion with the mortar in the bed below the joint, and will eventually chip, crack and come out. Along the same lines, McNulty testified that where the topping was but one-eighth of an inch thick the mortar was found to be "egg shell" thin on the top with nothing but sand underneath, and further stated that when topping is not of proper thickness the water in the mortar will evaporate rapidly causing the topping to shrink and to cure improperly. Although he did not say so directly, further testimony of McNulty relative to the sandy conditions found in the mortar joints in the defective areas would, in our opinion, permit a conclusion that the Medusa in such areas had not been properly mixed. This is apparent since the witness also testified that in the other areas of the courtyard laid by Classic Tile the mortar in the joints remained firm and undeteriorated.

• 2, 3 Since the clarifying decision in Pedrick v. The Peoria and Eastern R.R. Co., 37 Ill.2d 494, 510, it has become a basic principle of law in this jurisdiction that it is proper to direct a verdict "* * * only in those cases in which all the evidence, when viewed in its aspects most favorable to the opponent, so overwhelmingly favors [the] movant that no contrary verdict based on that evidence could ever stand." When this rule is applied to the record in this case, we believe it is clear that the trial court was in error when it directed a verdict for Classic Tile. In our opinion, there was more than enough evidence to sustain the allegation of the complaint that Classic Tile had been guilty of improper workmanship, and thus to present an issue of fact to be determined by the jury. Based upon the evidence previously set forth, we believe there were issues of fact created, viz., whether Classic Tile failed to uniformly comply with the specification that the topping was to be one-half inch thick; whether it at times failed to properly prepare the Medusa mix; and whether these failures, in whole or in part, caused the deteriorated areas in the courtyards.

• 4-6 Sollinger, president of one of the plaintiff companies, testified that Classic Tile had done nothing wrong "that he knew about," and Duggan, president of the other plaintiff company, testified that, "to the best of his knowledge," Classic Tile had followed the directions for mixing Medusa. Classic Tile now contends that such testimony amounted to judicial admissions of its lack of culpability which made the directed verdict proper. We do not agree with this contention. To defeat recovery, a judicial admission by a party which contradicts the allegations of his complaint must be deliberate testimony relating to a concrete fact, and not a matter of opinion, estimate, appearance, inference or uncertain summary. (See: Huber v. Black and White Cab Co., 18 Ill. App.2d 186, 190, 169 A.L.R. 798, 800-801.) In addition, the whole testimony of the party must be considered and evaluated and not just a part of it. (See: McCormack v. Haan, 20 Ill.2d 75.) The statements of Sollinger and Duggan relied upon here were clearly qualified and inconclusive, and in our opinion cannot be categorized as judicial admissions fatal to their case. When Duggan was being cross-examined by counsel for the Authority, he stated that it was impossible to ascertain whether there was an excess of sand or just a deterioration of the "material", and further stated that once deterioration had occurred, "you couldn't tell" whether a masonry bond had been formed when the mortar was originally installed. Classic Tile also contends that these answers are judicial admissions that its work was not faulty, but again we cannot agree. To state that it is not possible to say whether a condition existed, is not an admission that the workmanship which preceded the condition was proper workmanship. At best this cross-examination of Duggan created a conflict with the testimony of Hilfinger and McNulty and should have been submitted to and resolved by the jury.

• 7, 8 Keeping in mind the allegations of Count III of the complaint we cannot agree with the plaintiffs' second major contention, viz., that the verdict in favor of the defendant architects was against the manifest weight of the evidence. Jury determinations of factual matters can be set aside by a court of review only when it is clearly satisfied that the determinations were motivated by passion or prejudice or found to be wholly unwarranted from the manifest weight of the evidence, (Kahn v. James Burton Co., 5 Ill.2d 614, 623; Lau v. West Towns Bus Co., 16 Ill.2d 442, 451), and we do not find that either prerequisite exists in this case. Briefly restated, the complaint charged the architects with having negligently failed to specify a mortar fit or adequate for exterior use, and with having negligently failed to specify barriers or techniques which would have prevented ...


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