APPEAL from the Circuit Court of Cook County; the Hon. HAROLD
A. SIEGAN, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Plaintiff, Royal Ornamental Iron, Inc., an Illinois corporation (Royal), commenced an action to foreclose a mechanic's lien on real estate owned by Devon Bank, as trustee under Trust No. 1237 (Devon Bank). Defendants answered the complaint and Devon Bank filed a counterclaim against Royal for alleged breach of contract. At trial, plaintiff Royal waived its claim for lien and sought a money judgment upon its contract. Following a trial without a jury, judgment was entered against plaintiff Royal, dismissing its complaint with prejudice and awarding judgment against it in favor of Devon Bank on the counterclaim in the sum of $17,710. Plaintiff has appealed from the judgment. The central issue is whether the judgment is contrary to the manifest weight of the evidence.
Plaintiff is in the ornamental iron business. Devon Bank holds title to the real estate in Lincolnwood, Illinois, under an Illinois land trust. The beneficial interest in the trust is owned 50 percent by defendant Marshall D. Leib and 50 percent by Toulin, Inc. Devon Bank, as owner of the real estate, undertook to construct a bank and office building which was to consist of a basement, a ground floor and mezzanine to be occupied by the Bank of Lincolnwood, and a multistory office tower to be occupied by others. No general contractor was employed or involved. Leib was the architect in charge of construction.
On September 22, 1965, Royal entered into a written contract with Devon Bank, executed by Leib and Toulin as its agents, wherein Royal agreed to furnish and install specified ornamental and other work of metal. The contract provided that Devon Bank pay for the performance of the contract the lump sum of $15,500, with further itemization of the work and prices (excluding alternates not applicable here) as follows:
Stairwell # 1 $5,000.00 Stairwell # 2 3,600.00 Stairwell # 3 550.00 Stairwell # 4 300.00 Stairwell # 5 400.00 Stairwell # 6 400.00
Ornamental Railing and gate at roof garden 1,150.00
Ladders (all) 300.00 Railings in Bank area 2,700.00 Aluminum grating over electric vault 1,000.00 Woven wire partition at elevator penthouse 100.00 _________ Total $15,500.00
The relevant terms and provisions of the contract documents include:
(1) "At the earliest date after signing of contract, the Architect shall present an `Operations Schedule' setting up sequence of operations and time table for each principal item of new work . . ."; the schedule "shall be furnished as a guide . . . and shall be binding on them [the contractors] in their respective works; Failure to maintain schedule . . . shall constitute default";
(2) Payment to each contractor shall be made on monthly certificates (up to 90% of the value of the work in place and of materials suitably stored on the site; except when so certified by the Architect, the Owner shall have the right to withhold payment to a contractor);
(3) Work is to commence immediately upon signing the contract or as required by the Architect's work schedule so that the building can be completed by July 14, 1966; and
(4) If a contractor persistently or repeatedly refused to supply sufficient labor and/or materials for proper progress or to correct work rejected by the Architect, then, upon certification by the Architect, the Owner may, upon five days' written notice to the contractor, charge the same with his pro rata share of damages, such as rent loss, financing ...