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Continental Grain Co. v. Fmc Corp.

APRIL 11, 1975.

CONTINENTAL GRAIN COMPANY, PLAINTIFF-APPELLANT,

v.

FMC CORPORATION, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. ABRAHAM W. BRUSSELL, Judge, presiding.

MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 19, 1975.

Plaintiff brings this appeal to review the judgments and orders entered on November 7, 1973, and January 28, 1974, which granted defendant's motion and dismissed the complaint, without prejudice, pursuant to paragraph 48(1)(c) of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 48(1)(c)). The court found that there was another action pending between the same parties for the same cause in a Louisiana proceeding. The court also refused to allow plaintiff to file certain discovery.

Plaintiff now contends that: (1) paragraph 48(1)(c) only allows the dismissal of a party's complaint if there has been a "prior" pending complaint or counterclaim filed by that party against the other party to the controversy; (2) the two proceedings were not for the "same cause" as required by paragraph 48(1)(c); (3) plaintiff's requested discovery was improperly denied; and (4) if reversal is not in order, alternatively the court should reverse the dismissal of the complaint and remand with directions that the lower court enter a stay of proceedings until the Louisiana action has been completed.

The court had before it, when making its decision, the following: (1) plaintiff's Illinois complaint, with the contract between the parties attached as an exhibit thereto; (2) defendant's motion to dismiss; (3) defendant's memorandum in support of its motion to dismiss with the following attached; (a) defendant's Louisiana counsel's affidavit; (b) defendant's Louisiana complaint; (c) plaintiff's answer and set-off in Louisiana; (d) the discovery in the Louisiana proceeding; and (e) citations to pertinent Louisiana law; (4) plaintiff's Illinois counsel's affidavit with regard to plaintiff's discovery motion; (5) plaintiff's memorandum in opposition to defendant's motion to dismiss with the following attached: (a) plaintiff's Louisiana counsel's affidavit; and (b) the certificate of the deputy clerk of the Louisiana court showing when plaintiff's Louisiana answer was filed; and (6) defendant's reply memorandum with a supplemental affidavit of its Louisiana counsel and correspondence between both parties' Louisiana counsel attached.

From the foregoing papers and documents, the following pertinent evidence may be adduced: On or about September 18, 1967, through its Link-Belt Division, defendant submitted its contract proposal (revised on May 22, 1968) to plaintiff, to furnish, sell and deliver certain barge unloading equipment for grain. Plaintiff accepted the contract proposal on June 14, 1968, and defendant signed its approval on July 8, 1968. The purchase price was for more than $1,850,000. Although the contract obligated defendant to deliver on May 30, 1970, in fact the erection of the barge unloader was not completed until November 8, 1970, and the barge unloader was not formally accepted by plaintiff until January 4, 1971.

On September 25, 1972, defendant filed a complaint in Louisiana against plaintiff for the balance due on the purchase price, $153,387.43. Thereafter, as the above mentioned correspondence shows, plaintiff's Louisiana counsel requested and was given an extension of time in which to file plaintiff's answer in Louisiana. On December 28, 1972, plaintiff filed the instant complaint in Illinois against defendant. The following day, December 29, 1972, plaintiff filed its answer and set-off, in Louisiana, against defendant. Defendant's motion to dismiss was made on April 6, 1973.

Plaintiff's Illinois complaint admittedly alleges a cause of action in tort. It alleges (a) the existence of the barge unloader contract and some of its terms (i.e., purchase price and delivery date); (b) representations made by defendant to plaintiff about the capability of the barge unloader and defendant's expertise; (c) plaintiff's reliance on defendant's representations; (d) that the barge unloader was not manufactured and constructed in accordance with defendant's representations; (e) defects in design and manufacture; (f) defendant's knowledge of said defects; (g) breakdowns in the barge unloader after January 4, 1971; (h) plaintiff's deprivation of the use of the barge unloader during these breakdowns; and (i) damages totaling approximately $500,000.

Plaintiff's Louisiana answer and set-off admittedly alleges a cause of action for breach of contract. In its Louisiana answer plaintiff (a) denies it owes defendant the balance of the purchase price, i.e., $153,387.43, (b) admits the existence of the contract; (c) denies defendant's performance of the contract; and further alleges breach of contract and failure of consideration in that (d) defendant delivered the barge unloader late; (e) due to its improper design, construction and assembly, the equipment operated satisfactorily for only a short period; (f) the barge unloader had breakdowns after February 8, 1971; (g) plaintiff was deprived of the use of the barge unloader during these breakdowns; and (h) plaintiff itemized its damages totaling $481,432.66.

OPINION

The instant controversy involves the construction to be given to section 48(1)(c) of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 48(1)(c)). It provides as follows:

"(1) Defendant may, within the time for pleading, file a motion for dismissal of the action or for other appropriate relief upon any of the following grounds. If the grounds do not appear on the face of the pleading attacked the motion shall be supported by affidavit:

(c) That there is another action pending between the same parties for the same cause."

Plaintiff initially contends that paragraph 48(1)(c) can be properly applied to dismiss a party's complaint only if there has been a "prior" pending complaint or counterclaim filed by that party against the other party to the controversy. It then refers this court to the case of People ex rel. Lehman v. Lehman, 34 Ill.2d 286, 291, 215 N.E.2d 806, wherein it was stated, "We are aware of no provisions of statute or rule that would indicate that the pendency of an action is to be determined otherwise than by the filing of the complaint." Plaintiff then argues that since its Illinois complaint was filed 1 day before its Louisiana answer and ...


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