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Wilbur Waggoner Equipment Rental v. Johnson

JUNE 9, 1975.

WILBUR WAGGONER EQUIPMENT RENTAL & EXCAVATING COMPANY, PLAINTIFF-APPELLANT,

v.

LEONARD JOHNSON ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of St. Clair County; the Hon. JOHN T. FIEDLER and the Hon. JAMES W. GRAY, Judges, presiding.

MR. PRESIDING JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 9, 1975.

Plaintiff appeals orders of the trial court dismissing its complaint for damages against the treasurer and superintendent of a school district and the Superintendent of Educational Service Region, and denying leave to file amendments to its complaint. This appeal considers the sufficiency of the complaint to state a cause of action against any of the defendants.

At the time pertinent plaintiff was a corporation engaged generally in the business of renting equipment and doing excavating work. Defendant Leonard Johnson was business manager and treasurer, and defendant Rufus Starks was the superintendent of School District No. 189 in East St. Louis, Illinois. Defendant Lester J. Ruester was the Superintendent of Educational Service Region for St. Clair County and defendant Western Surety Company, a corporation, was his bonding company. Defendants Johnson, Starks and Ruester are sued as individuals and not in their official capacity.

The pertinent paragraphs of plaintiff's complaint allege that on April 24, 1972, School District No. 189 entered into a contract with Romel Wilbon, d/b/a Wilbon Wrecking and Excavating Company, to furnish all labor, material and equipment for demolition and removal of Rock Junior High School in East St. Louis; between April 24, 1972, and May 26, 1972, at the request of Wilbon, plaintiff, on open account, furnished to Wilbon materials, labor, equipment and services per invoices attached, in the total amount of $6,022.97. On or about June 19, 1972, plaintiff notified the Board of Education of School District No. 189 of the sum due plaintiff and of its claim for lien upon the money, bonds or warrants due or to become due Wilbon under the contract, said notification was by written notice attached to the complaint as Exhibit "F"; at the time of the service of the notice upon School District No. 189 the district was in possession of amounts due under its contract with Wilbon in excess of $6,022.97 and plaintiff's lien attached to said moneys, bonds and warrants and under section 23 of the mechanics' liens act (Ill. Rev. Stat., ch. 82, par. 23) it became the duty of School District No. 189 to withhold money to pay the amount due plaintiff. The complaint further alleged that defendants Leonard Johnson and Rufus Starks as the business manager-treasurer, and superintendent, of School District No. 189 were under the supervision and control of defendant Lester J. Ruester, Superintendent of Educational Service Region for St. Clair County, who had a statutory duty to exercise supervision and control over School District No. 189; on about July 10, 1972, the defendants Johnson and Starks, while under the supervision and control of defendant Ruester, disregarded, violated and breached the plaintiff's lien right under section 23 by paying Wilbon the remainder due him under the contract; defendant Ruester failed to discharge his duty as Superintendent of Educational Service Region for St. Clair County, thereby breaching his condition of his official bond in that he did not properly supervise and control School District No. 189 and the defendants Johnson and Starks in the administration of the contract fund. It was further alleged that defendant Ruester and defendant Western Surety Company had posted a surety bond in the sum of $12,000 conditioned upon the faithful discharge of his duties by defendant Ruester. Plaintiff prayed for judgment against each defendant for $6,022.97 plus interest and costs.

Exhibit "F" attached to plaintiff's complaint is written upon the printed letterhead of plaintiff and the body of the letter reads as follows:

"June 19, 1972 Board of Education District 189 240 North 6th Street, East St. Louis, Illinois

Attention: Miss Carol Frye

Dear Miss Frye:

As per our telephone conversation of June 19, 1972, I am enclosing the outstanding invoices owed to me by Wilbon Wrecking Company for work at the Rock Junior High School.

I have called Mr. Wilbon several times but I have not been able to contact him. We hope you will take this [sic] invoices into consideration before making final payment to Wilbon Wrecking.

Sincerely,

WLW/mjk Wilburn L. Waggoner President"

Defendants Johnson and Starks moved for dismissal upon the ground that it appeared upon the face of the complaint that the notice was insufficient to comply with the applicable lien statute. Defendants Ruester and Western Surety Company filed separate motions to dismiss ...


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