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Kuperman v. Leak

JUNE 12, 1974.

PHILIP KUPERMAN, D/B/A QUALITY METAL FABRICATION COMPANY, PLAINTIFF AND COUNTERDEFENDANT-APPELLEE,

v.

A.R. LEAK, DEFENDANT AND COUNTERPLAINTIFF-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. J. ARNOLD WELFELD, Judge, presiding.

MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:

This is the consolidation, on appeal, of circuit court cases numbered 70M1-128999 and 70M1-131200. In the first suit plaintiff sought to recover for heating and cooling materials, parts and labor furnished defendant pursuant to a written contract. The second action was brought to recover for heating and cooling materials, parts and labor furnished defendant as extra work incidental to other work being performed for defendant, allegedly at his special instance and request.

The defendant answered both complaints and filed identical counterclaims in both actions seeking damages for defective materials and parts and defective and incomplete work, breach of contract and breach of guaranty and warranty.

Trial was conducted in both cases simultaneously, without a jury. In the first cause plaintiff sought a judgment for $10,666.65 and judgment was entered in its favor for $8,000. In the second cause plaintiff sought a judgment for $7,077.83 and judgment was entered in its favor for $4,000. Judgment was also entered for the plaintiff as counter-defendant on defendant's counterclaims.

The defendant contends that (1) the judgments in both cases are against the manifest weight of the evidence, (2) the trial court manifested bias and prejudice against him, and (3) the rulings on certain objections to evidence were erroneous. He urges that the judgment entered in the first case, No. 70M1-128999, be reversed and the cause remanded for a new trial, and that the judgment in the second case, No. 70M1-131200, be reversed with directions to enter judgment in his favor.

• 1 We come now to a consideration of the assignment of errors, and first, to a determination of whether the judgments rendered are manifestly against the weight of the evidence. In this regard, it must be borne in mind that a reviewing court must presume that the trial judge heard sufficient evidence upon which to base his judgment. (Croft v. Lamkin, 112 Ill. App.2d 321, 251 N.E.2d 88.) It is, however, the right and duty of the reviewing court to set aside a finding if it is wholly unjustified by the evidence and clearly against the manifest weight thereof. (Talmage v. Union Central Life Insurance Co., 315 Ill. App. 623, 43 N.E.2d 575.) With this in mind, let us examine the facts in the record.

The parties first entered into a written contract on August 30, 1967, wherein plaintiff was to install at a cost of $44,000, all air conditioning, heating, and ventilating systems in defendant's building at 914 East 79th Street in Chicago, following blue prints furnished by defendant. No electrical, plumbing, or trade work, with the exception of refrigeration, was included in the contract. The building consists of a restaurant on the first floor and a banquet hall on the second floor. In the rear of the building is the Blue Room. The total cost of the building was about $700,000, including the work performed under plaintiff's contract. The plaintiff was paid in full in the amount of $44,000 for the services performed under this original contract.

The work on the second floor pursuant to the contract went almost exactly according to the plans. There was, however, a considerable amount of modification in the first-floor plan. As a result, as the work on the original contract progressed, the parties entered into a second written contract on October 24, 1968, over and above the original contract. Under the terms of this agreement, plaintiff was to provide four units and to heat and air-condition an area in the downstairs rear called the Blue Room, originally intended to be an open parking area, but which the defendant decided to use for restaurant seating. The contract price contained in this second written agreement was $10,000.

There was testimony that, while the work under this second contract was being performed, other modifications were made. Philip Kuperman testified that:

"beginning in the back area they decided to put in what they called a VIP office which needed heating and air conditioning, and we had to increase the size of the units and run in additional ducts. Mr. Leak's office was made much larger. We had to go from two ton units to three ton units and we had to vent that and there [were] three hot water heaters and we vented those, and later we installed heating units in the vestibules."

He claimed that this work was additional to and not covered under the second contract and amounted to approximately $7350. A claim for payment for this additional work was the substance of plaintiff's second complaint, numbered 70M1-131200. A claim for the balance of payment for performance under the $10,000 written contract was the substance of plaintiff's first complaint, numbered 70M1-128999. The defendant asserted at trial breach of both the original $44,000 contract, for which plaintiff was paid in full, and the subsequent $10,000 contract, and he denied the existence of an oral contract for extra work.

In regard to the alleged oral contract for extras not included in either written contract, for which the trial court entered a judgment of $4,000 for plaintiff, the defendant asserts on appeal that the evidence adduced at trial cannot support a finding of such a contract. We are compelled to agree.

• 2, 3 It is fundamental law that there must be an offer and an acceptance to create a contract. There must be mutual assent by the parties. And the burden of proving the existence of a contract and all the facts essential to the cause of action is upon the person who asserts the contract. (Dick v. Halun, 344 Ill. 163, 176 N.E. 440.) Thus the law assigns to a contractor, seeking to recover for extras, the burden of proving the essential elements. This includes a showing that (a) the work was outside the scope of his contract promises — here the two written contracts, and (b) the extra items were ordered by the owner and he agreed to pay extra sums of money by his words or conduct. (Watson Lumber Co. v. Guennewig, 79 Ill. App.2d 377, 389-90, 226 N.E.2d 270, 276.) The court in Guennewig further noted:

"The proof that the items are extra, that the defendant ordered it [sic] as such, agreed to pay for it, and waived the necessity of a written stipulation, must be by clear and convincing evidence. The burden of establishing these matters is properly the plaintiff's. Evidence of general discussion cannot be ...


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