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Jos.w. O'brien Co. v. Highland Lake Const. Co.

JANUARY 16, 1974.

JOSEPH W. O'BRIEN COMPANY ET AL., PLAINTIFFS-APPELLEES,

v.

HIGHLAND LAKE CONSTRUCTION COMPANY ET AL., DEFENDANTS. — (LOREN SCOTT, DEFENDANT-APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. GEORGE FIEDLER, Judge, presiding.

MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:

This action was brought to recover damages allegedly sustained by plaintiffs as a result of the breach of a written contract entered into between the plaintiffs, a joint venture, and the defendants, Loren Scott and Highland Lake Construction Company. The court directed a verdict in favor of plaintiffs and against the defendant, Loren Scott, at the close of all the evidence on the question of liability and the jury returned a verdict assessing plaintiffs' damages at $25,000. The court entered judgment on the verdict from which this appeal is taken.

The issues presented for review are (1) whether the trial court erred in granting the plaintiffs' motion for a directed verdict at the close of all the evidence, (2) whether the court erred in excluding certain documentary evidence offered by the defendant, and (3) whether the court erred in admitting into evidence certain documentary materials offered by the plaintiffs.

The evidence reveals that the plaintiff companies, a joint venture, entered into a general contract with the County of Cook in March, 1967, which contract called for the installation by plaintiffs of approximately 2000 feet of storm sewer in the west leg of the main drain of the Dan Ryan Expressway. On June 16, 1967, the plaintiffs, as general contractors, entered into a written subcontract wherein Scott and Highland Lake, the defendants and subcontractors herein, agreed to perform a certain portion of the sewer pipe installation called for in the general contract.

Most of the installation could be done by the plaintiffs by trenching or open cut method of installing the sewer pipe. But at certain specific locations where the Dan Ryan Expressway crossed certain roads, and where traffic could not be disrupted, the sewer pipe had to be tunneled underneath by means of a method known as "jacking." This method involves the digging of a pit in which huge hydraulic jacks are placed, which exert pressure on a cement pipe in order to literally force it through the soil from one point to another. The defendants subcontracted to perform the installation at these locations, under the Dixie Highway at 147th Street and under the tollroad.

In July of 1967 the defendants Scott and Highland Lake dug a jacking pit in the area of the Dixie Highway and commenced jacking pipe under that road. One hundred and seventeen feet of pipe was jacked under Dixie Highway. The resident Cook County Highway Department engineer on the job stopped that portion of the job in August 1967 because he found that 37 1/2 feet of pipe that had been jacked by the defendants was off line and grade and completely unsatisfactory.

The defendants were directed to remove their jacking equipment from the Dixie Highway site and commenced jacking at a second site at the tollroad. They immediately encountered water and adverse soil conditions. No pipe was jacked by them at the tollroad site from September 6, 1967, until the latter part of October, 1967. At about that time the last employee of the defendants left the site and never returned.

In the interval before defendants left the second job site in October of 1967, plaintiffs went to the original site at the Dixie Highway where 117 1/2 feet of pipe was installed, opened the ground by an open cut method, removed 37 1/2 feet of the pipe, dug deeper and re-installed pipe to the proper line and grade. They used their own men and equipment to correct and complete the work project originally undertaken by the defendants. The plaintiffs' employees thereafter took over the attempts to jack pipe at the second location under the tollroad in the first week of November, 1967. No pipe was jacked in place by the plaintiffs until January 11, 1968, for various reasons, including the condition of the soil, the insistence by the Toll Highway Commission that a crossover be constructed in December of 1967, and the Christmas holidays, during which time the Toll Highway Commission did not wish its tollroad to be threatened. In January of 1968, the plaintiffs were able to jack 84 1/2 feet of pipe at the tollroad site, but then changed the method of operation because the pipe was cracking up under earth pressures. The remainder of the total 195 feet to be installed was done by plaintiffs using a different method of installation known as "poured monolithic," which is the pouring of concrete inside the tunnel to form the pipe.

The plaintiffs sued defendants for damages sustained in (1) first removing and then replacing the 37 1/2 feet of pipe jacked by defendants at the Dixie Highway site which was off line and grade, and (2) jacking the 84 1/2 feet of pipe at the tollroad site, where the defendants had been totally unable to jack any pipe at all. The plaintiffs made no claim for damages relating to their installation at the tollroad site of the remaining 195 feet of pipe, which they accomplished not by jacking but by using the poured monolithic method. The jury by its verdict assessed the damages in the amount of $25,000.

As we stated, the court directed a verdict in favor of plaintiffs and against the defendant Scott on the issue of liability, citing as its grounds the case of Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504. The defendant filed as an affirmative defense an amendment to his answer raising the issue that the jacking of pipe was impossible according to the specifications of the contract. The defendant based this defense on the theory that performance was impracticable because of extreme and unreasonable difficulty and expense unanticipated by defendant. He submits that because of that issue alone the trial court should have allowed the issue of liability to go to the jury and clearly erred in directing a verdict in favor of the plaintiffs.

The plaintiffs place their claim first on the fact that they not only did the work of jacking the 37 1/2 feet of pipe at the Dixie Highway site which defendant was subcontracted to perform, but they also were put to the expense of removing the pipe previously installed by the defendant because it was on the wrong line and grade. In this instance the defendant did not assert that there was extreme or unreasonable difficulty encountered in performing under the contract. Indeed, the defendant was clearly able to jack in the pipe, but merely did a portion of the job unsatisfactorily.

The plaintiffs also had to undertake the work of jacking in place 84 1/2 feet of pipe at the tollroad on the Dan Ryan Expressway. The defendant claims that the jacking of pipe at this site was impossible according to the specifications of the contract because the adverse soil conditions created extreme earth pressure which caused the pipe to crack in the tunnel. The defendant feels that this issue of impossibility should have been left for the jury. The trial court rejected this assertion and we are in accord.

• 1 It should first be re-emphasized that the plaintiffs seek no damages for the remaining footage out of the total 195 feet which the plaintiffs installed at the second site by utilizing a different method, i.e., poured monolithic. Plaintiffs seek to get damages only for the 84 1/2 feet of pipe which they were actually able to jack into place contrary to defendant's efforts. Under the traditional concept of impossibility, the result is clear. If the plaintiffs themselves were able to accomplish what the defendant asserts was impossible, regardless of the difficulty encountered, then ipso facto performance was not impossible and the defense is non-meritorious.

The defendant, however, calls for the application of a more liberal concept of impossibility. He calls out attention to the case of Fisher v. United States Fidelity & Guaranty Co., 313 Ill. App. 66, 39 N.E.2d 67, where the court cited at page 72 (39 N.E.2d at 70) the language of the Restatement of Contracts § 454 (1932) to the effect that "impossibility means not only strict impossibility but impracticability because of extreme and unreasonable difficulty, expense, injury or ...


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