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Bank of Marion v. Robert "chick" Fritz

JANUARY 18, 1973.

THE BANK OF MARION, PLAINTIFF-APPELLEE,

v.

ROBERT "CHICK" FRITZ, INC., DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Williamson County; the Hon. STEWART CLUSTER, Judge, presiding.

MR. PRESIDING JUSTICE GEORGE J. MORAN DELIVERED THE SUPPLEMENTAL OPINION OF THE COURT:

SUPPLEMENTAL OPINION ON REHEARING

Defendant appeals from the trial court's entry of judgment for the plaintiff in the amount of $25,567.92 notwithstanding a jury verdict for the defendant. The trial court also conditionally ruled that in the event of a reversal on appeal that the plaintiff be given a new trial for assessment of damages only or a new trial on all the issues. Defendant also appeals from this ruling.

The Bank of Marion, hereinafter referred to as "the bank", sued Robert "Chick" Fritz, Inc., hereinafter referred to as "Fritz", a beer distributor, for an amount of money representing what was owed on the bank's loan to a contractor, Diversified Contractors, hereinafter referred to as "Diversified", for work on a warehouse it was building for Fritz. The contract between Fritz and Diversified had been entered into prior to the advance of money, and Fritz was not a party to the negotiation of the loan.

The bank filed suit against Fritz, alleging that on or prior to October 15, 1969, Fritz had entered into a contract with Diversified to construct for Fritz a beer warehouse near Mascoutah, Illinois; that Diversified sought to borrow the funds required for the construction from the bank; that the bank informed Diversified that in order to furnish the funds it would be necessary that Fritz make the payments due Diversified under the contract directly to the bank; that Fritz, as an inducement to the bank to furnish the money to Diversified, executed and delivered to Diversified for delivery to the bank, the following instrument, hereinafter referred to as "Exhibit A":

"Certification of Contract

Bank of Marion Public Square Marion, Illinois

(Attn: Mr. Oscar Schafale)

Re: Construction Contract on Beer Warehouse and Office, Highway 177 West, Mascoutah, Illinois.

This certification of contract is to confirm the contract between our company and Diversified Contractors, Inc., for the contract amount of $111,664.00 plus extras to date of $3,745.00 for a total of $115,409.00. The total amount plus any other extras and/or deletions will be made jointly to the Bank of Marion and Diversified Contractors, Inc.

(Signed) Robert `Chick' Fritz, Inc. Mascoutah, Illinois By: Robert Fritz."

that in reliance on the agreement, the bank loaned Diversified the sum of $64,700.50; that Fritz breached its agreement to pay the contract amounts jointly to the bank and Diversified; that as a result, the funds due under said contract were not applied to the loans made by the bank to Diversified to the damage of the bank in the sum of $34,697.28.

In its answer to the bank's complaint, Fritz admitted the execution and delivery of the instruction in question, but denied it was made for the purpose of inducing the bank to furnish funds to Diversified.

The jury rendered a verdict adverse to the bank but the trial court entered a judgment notwithstanding the verdict pursuant to the bank's post trial motion. Alternatively, the trial court granted the bank ...


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