APPEAL from the Circuit Court of Cook County; the Hon. WALLACE
J. KARGMAN, Judge, presiding.
MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
Mr. JUSTICE GOLDBERG delivered the opinion of the court:
After trial by the court, Gill Custom House, Inc. (plaintiff), obtained a judgment against the Chicago Gaslight Club, Inc. (defendant), sued herein as Gaslight Club, Inc., for $7012.56. Defendant appeals.
Defendant contends here that the judgment is against the weight of the evidence and that plaintiff was estopped from asserting its claim because of reliance by defendant upon plaintiff's actions. Plaintiff contends that the judgment was not against the manifest weight of the evidence and that this court may not consider a new theory on appeal when the point was not raised in the trial court. Since we are of the opinion that the issue here is largely factual, a summary of the evidence is essential.
Plaintiff is in the business of installing sound equipment and public address systems. Defendant operates a place of entertainment in Chicago. During September of 1969, plaintiff and a man named John Lovelace, associated with Acoustron Corporation (Acoustron), a manufacturer of audio equipment, operating a plant in Texas, considered the possibility of installation by plaintiff of an audio and public address system at defendant's place of business. Plaintiff spoke to an agent of defendant named Charles Lange regarding the installation. No agreement was reached.
Shortly before Christmas of 1969, Lange communicated with John Gill, of plaintiff corporation, and additional discussions were held regarding installation of the equipment for defendant. Gill and Lange, acting for their respective companies, entered into a verbal agreement for installation of the work with the understanding that it be completed in time for New Year's Eve. Plaintiff commenced work the day after Christmas. Plaintiff prepared a written proposal dated December 26, 1969, a copy of which was forwarded by plaintiff to defendant. This document is headed "Agreement." It describes in some detail the equipment to be installed for defendant. The total price of the installation is stated as $7153. Payment was to be made one-third as a deposit, one-third upon completion of installation and the balance 30 days after completion. There is a space provided for signature by John T. Gill and also a space with the words "Gaslight Club" and a place for signature, title of signatory and date. Gill testified that he mailed this agreement to defendant. The record does not show that the agreement was ever executed by defendant or by plaintiff. Gill further testified that he requested the agreement from Mr. Lange but that Lange "* * * didn't know exactly what happened to it."
The installation was completed in time. John Gill testified that he spoke to Mr. Lange on the telephone on or about January 10, 1970, and Lange told him that he had a special manner in which payment would be made. By the end of January 1970, Gill asked Lange how the payment was going to be made. Lange told him to bill Acoustron and that Acoustron would pay. Plaintiff corporation then sent a bill to Acoustron for $6270.
This bill, or invoice, is dated February 23, 1969; it is addressed solely to Acoustron and has upon it the name of Mr. Lovelace. It is undisputed that no other invoice, or bill, was ever sent by plaintiff to defendant or to any person other than Acoustron. The parties agree that, although the invoice is dated February 23, 1969, this date is erroneous and it was actually prepared and sent on or about February 23, 1970.
On February 10, 1970, Lovelace wrote a letter to a vice-president of Acoustron at its office in Texas. This letter described certain equipment "included in the Gill Custom House original quote" in the total amount of $302 which Lovelace could not find at defendant's place of business. The letter also detailed certain equipment placed for defendant, at the request of Lange, not included in the Gill quote; total $491. A short accounting is set forth in the letter showing a total due to Acoustron from defendant in the amount of $6202 and a total of $6802 due from Acoustron to plaintiff. Copies of this letter were sent to defendant and also to John Gill. Gill first testified that he did not recall receiving a copy of this communication. Thereafter, after portions of his discovery deposition had been read to him, he conceded that he had received it.
On March 10, 1970, defendant made an initial payment of $2184.33 directly to Acoustron. Shortly thereafter Gill spoke to Lange and told him that no payment had been made to him. Lange stated that he had already made a payment to Acoustron. Another payment was made by defendant to Acoustron on May 12, 1970, also in the amount of $2184.33. Thereafter Gill spoke to Lange and Lange told him that defendant had made the second payment. Lange gave him the name of the president of Acoustron and Gill instructed his lawyer to write to Acoustron about the account. On June 5, 1970, the lawyer sent a letter demanding payment from Acoustron. Prior to that date, and on May 22, 1970, the president of Acoustron wrote to plaintiff "concerning the status of the account owed by Acoustron to your company." This letter stated the reason for failure of Acoustron to pay the moneys due plaintiff and stated that within 3 or 4 weeks the cash situation of Acoustron would ease so as to enable full payment of $7153 to plaintiff. The letter stated that the president of Acoustron guaranteed that the account would be fully satisfied no later than August 10, but that earlier payment would be attempted.
On October 8, 1970, counsel for plaintiff wrote a letter to counsel for defendant stating that plaintiff had made the installation in accordance with an agreement between Acoustron and Lange and that the amount due and owing to plaintiff had not been paid, although defendant had paid two-thirds of the account to Acoustron. The letter called upon defendant to make some arrangements for payment upon an equitable basis. This letter referred to a previous conversation in which the attorneys had discussed possible bankruptcy proceedings involving Acoustron.
The evidence also shows that Burton Browne Advertising had rendered services to Acoustron on various dates from December 31, 1969, to and including May 18, 1970. Acoustron owed Burton Browne Advertising a sum exceeding the entire amount claimed by plaintiff. On September 2, 1970, Burton Browne Advertising assigned a portion of this account in the sum of $2285 to defendant. It appears from response made by defendant's counsel to direct inquiries from the court during trial, that Burton Browne is one of the general partners in Burton Browne Advertising and is also president of defendant corporation and he has no connection whatsoever with Acoustron. Defendant then, on November 2, 1970, issued its check to Burton Browne Advertising for the amount of $2285 and on that date defendant notified Acoustron by letter that the account due from defendant to Acoustron had been credited to the extent of $2285.
On July 9, 1970, plaintiff filed suit against Acoustron in the circuit court of Cook County. The complaint alleged that on May 22, 1970, the parties had examined their claims and had arrived at an account stated with balance due plaintiff in the amount of $7153. A copy of the letter to plaintiff from Acoustron, dated May 22, 1970, concerning this account was appended to the complaint, Defendant was not made a party to the suit. On November 25, 1970, plaintiff filed an amended complaint. Count I repeated the allegations of the account stated between plaintiff and Acoustron, on May 22, 1970, in the amount of $7153. Count II alleged that plaintiff agreed to and did install a sound system on the premises of defendant which defendant accepted. It alleged that defendant has been benefited and has been unjustly enriched by installation of the sound system for which plaintiff has not received payment. Plaintiffs prayed judgment in the amount of $7153.
On June 1, 1971, plaintiff filed a second amended complaint upon which the cause was tried. This pleading contained allegations only concerning defendant and did not mention Acoustron. It alleged that the parties had entered into a contract on December 26, 1969, pursuant to which an agreement was submitted to defendant which had been signed by plaintiff. The total price was $7153, which defendant has refused to pay upon demand. Count II alleged that plaintiff agreed to and did install the sound system on the premises of defendant and that this installation was accepted by ...