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Berry v. Blackard Const. Co.

AUGUST 9, 1973.

RICHARD BERRY, D/B/A BERCO & ASSOCIATES, PLAINTIFF-APPELLEE,

v.

BLACKARD CONSTRUCTION CO. ET AL., DEFENDANTS-APPELLANTS — (FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF PEORIA ET AL., DEFENDANTS.) BLACKARD CONSTRUCTION CO., PLAINTIFF-APPELLANT,

v.

RICHARD BERRY, D/B/A BERCO & ASSOCIATES, ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Macon County; the Hon. A.G. WEBBER, III, Judge, presiding.

MR. JUSTICE SIMKINS DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 12, 1973.

This is an appeal from two judgments entered in two cases which were consolidated in trial court, and in which the issues were tried without a jury.

On November 6, 1969, appellant Blackard Construction Co. filed suit against appellee Richard Berry, d/b/a Berco & Associates and Great American Insurance Company (Berry's surety) alleging that Berry had breached a contract for the construction of certain facilities in Camelot Addition and sought damages for repairs of Berry's faulty work, the cost of completion of the work following Berry's refusal to proceed with the job, and consequential damages. As to this suit the trial judge found Blackard Construction Co. guilty of anticipatory breach of the contract and entered judgment in favor of Berry.

On February 13, 1970, the appellee Richard Berry, d/b/a Berco & Associates sued the appellant Blackard Construction Co., Richard Blackard, Yvonne Blackard and others having interests in Camelot Addition, a subdivision in Decatur, Illinois. Berry alleged breach of contract and sought to enforce his rights under the Mechanic's Lien statute. The trial judge found in Berry's favor and awarded him a mechanic's lien in the sum of $20,940.64.

Richard D. Blackard, during the period of time in question, was the sole stockholder and President of Blackard Construction Company. He and his wife Yvonne Blackard originally purchased the land which became Camelot Addition. On June 2, 1969, Blackard and his wife entered into an agreement with Blackard Construction Company providing that all work on Camelot Addition (including the work to be performed by appellee Berry) would be completed by February 1, 1970. Blackard Company was to develop the subdivision, supervise the installation of all improvements and was granted the option to purchase the improved lots and to promote sales. On June 16, 1969, Blackard Company and Berry entered into a contract pursuant to which Berry was to construct sanitary sewers, storm drainage, water mains and alternate streets for the Camelot Addition. The first paragraph of the agreement incorporated, by reference, Standard Specifications for Water and Sewer Main Construction in Illinois, first edition, August 1, 1967, a publication by the Illinois Society of Professional Engineers and other related groups interested in the titled subject. The book contains 152 pages. The contract further provided that "The work * * * shall be completed in 180 work days. * * * Work days shall be determined by the Engineer." Other pertinent paragraphs provided as follows:

"4. PROGRESS PAYMENT. BLACKARD shall make payment on account of the contract as provided therein as follows:

On or about the 15th day of each month, an amount equal to 90% of the value, based upon the contract price of labor and materials, incorporated in the work up to the last day of the preceding month, as certified to by Warren E. Hagan, as engineer, less the aggregate of previous payments.

5. ACCEPTANCE AND FINAL PAYMENT. Final payment shall be due thirty days after substantial completion of the work, provided the work be then fully completed and the contract fully performed.

Upon receipt of written notice that the work is ready for final inspection and acceptance, the Engineer shall promptly make such inspection and when he finds the work acceptable under the contract and the contract fully performed, he shall promptly issue a final certificate under his own signature, stating that the work provided for in this contract has been completed and is accepted by him under the terms and conditions thereof, and that the entire balance found to be due BERCO, and noted in said final certificate, is due and payable.

Before issuance of final payment BERCO shall submit evidence satisfactory to Warren E. Hagan, Engineer, that all payrolls, material bills, and other indebtedness connected with the work have been paid or otherwise satisfied."

Berry was to commence work by June 23, 1969. He was paid, pursuant to the above-recited paragraph 4 of the contract, a progress payment of $6,470.28 for work completed through July 1, 1969; he received a progress payment of $16,661.46 for work completed, from July 1, 1969, to August 1, 1969, and a third progress payment in the amount of $37,855.05 for work completed from August 1, 1969, to September 1, 1969. Warren Hagan, engineer for Blackard testified, with reference to the progress payments as follows:

"Q. In connection with this contract, did you on a monthly basis prepare what was called an Engineer's Payment Estimate?

HAGAN: Yes.

J. And what was meant to be covered by the estimates on ...


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