APPEAL from the Circuit Court of Cook County; the Hon. WALTER
P. DAHL, Judge, presiding.
MR. JUSTICE HAYES DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 11, 1973.
The appeal in this case arises out of a complaint in chancery to establish and foreclose a mechanic's lien. Prior to 21 August 1967, plaintiff-appellant Excellent Builders, Inc. (hereinafter plaintiff) bid on a construction job for the construction of an office building on the southeast corner of Devon and Avers Avenues in Chicago. Plaintiff prepared its bid on the basis of plans and specifications prepared by defendant-appellees' architect. On 21 August 1967, plaintiff was awarded the contract. Plaintiff agreed to supervise, and furnish all labor and materials for, the construction of the office building for the sum of $188,700. This contract was later ratified by defendant Pioneer Trust and Savings Bank in its capacity as land trust trustee.
Shortly thereafter, plaintiff, by its president Harry Brooks, paid for and procured a building permit from the City of Chicago. The record indicates that the building permit issued on the basis of the plans, specifications, and recommendations on which plaintiff had prepared its bid. After the building permit had been issued, plaintiff constructed the first deck of the building and erected steel columns in accordance with the plans and specifications.
On 31 October 1967, the Department of Buildings revoked the building permit, after which plaintiff ceased operations. The Department had discovered that the planned and actual position of the building on the lot violated certain city zoning ordinances concerning side yard and setback requirements.
On 17 January 1968, plaintiff filed this suit to establish and foreclose a mechanic's lien. To the date on which it had ceased operations, plaintiff alleged that it had furnished materials and services in the amount of $74,418. Of this amount, defendant had paid only $10,000. Plaintiff sought a lien in the amount of the balance. Defendant answered on 16 February 1968, at which time it also filed a counterclaim alleging breach of contract by plaintiff. The breach complained of was plaintiff's failure to secure a proper building permit which, under the terms of the contract, it was bound to do.
Subsequently, defendant filed a motion for summary judgment in its favor and against plaintiff on plaintiff's complaint. The basis for the motion was that, since the contract on its face violated the Chicago Zoning Ordinance, it was illegal and would not support a mechanic's lien. In its counteraffidavits, plaintiff alleged that the building permit had been issued by the Department primarily as the result of active wrongdoing on the part of one of the beneficiaries of the land trust. Plaintiff alleged that the said beneficiary had, in July of 1967, applied for and received from the City Council a rezoning of the premises based on a set of plans for the construction of this office building, which plans fully complied with the zoning ordinances as rezoned. The beneficiaries, in advance of the construction of the building, had entered into a lease of the improved premises; one provision of the said lease required the lessor to provide on the premises a parking space for 35 vehicles. The beneficiaries then discovered that it would be impossible to provide such a space, were the building to be constructed according to the plans on the basis of which the rezoning had been obtained. Hence, the beneficiary in question had the architect draw up another set of plans which provided the said parking space, but which, in order to do so, required that the building be built in violation of certain setback requirements of the zoning ordinance as rezoned a fact actually known both to the beneficiary and the architect. Plaintiff then alleged that the beneficiary in question had instructed the architect to misrepresent to an official of the Building Department that the plans to be submitted to the Department for the building permit approval were the same plans which had been considered and approved by the City Council in rezoning the premises. Plaintiff further alleged that it had no part in the drafting of the illegal plans; that it had no actual knowledge of the illegality of the plans when it had made its bid on the basis of those plans, nor at any time thereafter until the revocation of the building permit; that it had made no misrepresentation to officials of the Building Department or to anyone, but had merely passively submitted the illegal plans pursuant to its contractual duty to secure the building permit, which had thereupon been issued. Plaintiff's theory was that, even if the contract were illegal (which plaintiff did not concede), the parties were not in pari delicto because President Brooks had merely delivered the plans (which had been furnished him by defendants' architect) to the Building Department and had not participated in the alleged fraud which resulted in the issuance of the void and revocable permit. Therefore, plaintiff would not be barred from obtaining its lien.
Prior to the hearing on the motion for summary judgment, defendants filed a motion for a protective order prohibiting further discovery. In order to support the allegations in its counteraffidavits, plaintiff had desired to obtain the deposition of the beneficiary of the land trust accused of wrongdoing, as well as the deposition of the city official to whom these alleged misrepresentations had been made. The basis for defendants' motion was the contention that the only issue before the court was the validity of the contract, which could be determined from the face of the contract, and that plaintiff should not be permitted to take any depositions other than those which would be relevant to the issue of the validity of the contract. The trial court granted defendants' motion and entered a protective order prohibiting further discovery.
After a hearing, the trial judge granted the motion for summary judgment. In so doing the trial court held the contract to be illegal on its face and unenforceable. It also held that it had no authority to weigh degrees of culpability in a mechanic's lien suit. Finally, the trial court upon its own motion dismissed defendants' counterclaim (because defendant was equally unable to enforce an illegal contract).
• 1 The granting of a motion for summary judgment is proper if upon examination of the record it can be fairly said that no triable issue of fact exists. (Goodwin, Inc. v. George W. Bowers Co. (1960), 24 Ill. App.2d 158, 164 N.E.2d 278; Ray v. City of Chicago (1960), 19 Ill.2d 593, 169 N.E.2d 73.) As we shall explain hereafter, we are of the opinion that a triable issue of fact is present in this case and that the motion for summary judgment was improperly granted below.
As the necessary basis for a lien, the statute requires a contract (Ill. Rev. Stat. 1967, ch. 82, § 1), and the cases have construed the statute to require a valid contract. (Pascal P. Paddock, Inc. v. Glennon (1965), 32 Ill.2d 51, 203 N.E.2d 421; Rittenhouse & Embree Co. v. Warren Construction Co. (1914), 264 Ill. 619, 106 N.E. 466.) Defendants contend that, since the contract in question violates the City ordinance, the contract is illegal and void and, as a matter of law, cannot be the foundation for a claim of a mechanic's lien in favor of plaintiff.
Plaintiff, on the other hand, first offers three theories, any one of which, it contends, would have enabled the contract in the case at bar to have become a legal contract or at least to have become legally performable. Plaintiff contends that: (1) defendants could have relocated the building in conformance with the applicable side yard requirements; (2) defendants could have obtained a variation from the City with respect to the front setback and side yard requirements; and (3) defendants could have continued construction in reliance on the City's approval of the plans and specifications submitted to the Building Department and the issuance of the building permit pursuant thereto. The validity of these theories would, it is contended, then give rise to triable issues of fact. None of these theories, however, has any application to the facts of this case.
• 2 As to whether defendants could have relocated the building in conformance with the applicable side yard requirements or whether the defendants could have obtained a variance, we agree that both of these alternatives were possible. However, the contract in the case at bar does not impose any duty on defendants to take either of those courses of action. It is not for the courts to impose such a duty. A court will not allow recovery or determine rights upon a ...