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George F. Mueller & Sons v. Northern Ill. Gas

SEPTEMBER 12, 1975.

GEORGE F. MUELLER & SONS, INC., PLAINTIFF-APPELLANT,

v.

NORTHERN ILLINOIS GAS COMPANY, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. RONALD J. CRANE, Judge, presiding.

MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

This is an appeal from an order entered in favor of defendant, finding that plaintiff had failed to prove by a preponderance of the evidence that it had adequately performed its duties under a contract to install, service and maintain vending machines. This was the only issue unresolved following our former opinion in this matter (see George F. Mueller & Sons, Inc. v. Northern Illinois Gas Co., 12 Ill. App.3d 362, 299 N.E.2d 601), wherein we held that a valid and binding contract existed between the parties and that the trial court had therefore erred in entering judgment for defendant on the grounds of formal defects in the contract. We remanded the cause so that the trial court might rule on defendant's remaining contention that plaintiff's action should fail because it did not prove it had adequately performed all the conditions of the contract. We briefly review the facts as they appear in the record and a bystander's report of the trial proceedings.

Plaintiff contracted to install vending machines at three of defendant's offices and to maintain and service said machines. Defendant was to receive a percentage of sales from the machines as a commission. Paragraph two of the agreement provided:

"After installations [sic] the Operator agrees during said period to maintain and service the above machines as often as the Proprietor notifies the Operator such maintenance and service is required and will keep said machines in proper operating condition when so notified. The Operator agrees during said period to keep said machines stocked with standard products sold through said machines. Proprietor agrees that the Operator shall not be in default unless and until the Proprietor has served a written demand on the Operator for maintenance, service or products."

The contract term began on November 17, 1969, and was to run for a period of three years. On April 8, 1970, defendant's employee (Morphey) wrote plaintiff a letter, stating that the Company was "extremely unhappy with the vending machine service you are allegedly providing us" and that, despite telephone complaints to plaintiff and visits by plaintiff's representative, "conditions have not improved." The letter then listed numerous failings in plaintiff's service, including its failure to repair machines or to restock machines, its restocking of machines with stale food, the presence of cockroaches in one machine, and the fact that no commission on sales was paid from the inception of the contract. Morphey's letter further stated that written notice had been sent to plaintiff's representative (Smith) on February 20, complaining of stale rolls and candy, that the situation had not improved and that, in fact, one employee had recently purchased a roll which had become moldy. Defendant's letter concluded with a demand that plaintiff remove its machines from defendant's premises not later than April 15, 1970. Plaintiff responded in a letter, dated the following day, wherein he chose to treat the contract as remaining in full force and effect and either denied or promised to investigate each of defendant's complaints. A check for commissions was enclosed. No further communication between the parties appears to have occurred. Plaintiff then brought this action against defendant for breach of contract.

The record is devoid of a transcript of the original hearing. The parties, however, had submitted a bystander's record of the proceedings in the prior appeal which, however, is abstract in form and very sketchy. In any event, we glean from it that plaintiff first called A.J. Morphy, defendant's division personnel director, who testified that he had received plaintiff's reply letter dated April 9, 1970, with the enclosed commission check. Thereafter, plaintiff called a number of its employees who testified as follows:

James Dorr, employed to service plaintiff's machines, said that he had serviced the accounts of defendant in its Palos and Crestwood Heights offices during the months of January, February and March of 1970; that he checked and filled the vending machines every other week; that the machines were in good mechanical condition and stocked with fresh new merchandise; and that he had not received any complaints on service.

Stanley Zych, a coffee routeman, said that he serviced machines at the same locations as Dorr; that the condition of the machines was good; that a machine at one location did not give proper change, but he continued to service that machine "until he found it disconnected."

Gary Metke testified that he serviced a candy machine and two cigarette machines at defendant's Glenwood location during a five-month period; that he had received complaints about empty machines which he reported to the office; "that he was not told later that the complaints had not been remedied."

Ronald Hric, a coffee routeman, said that he serviced defendant's Glenwood location; that he had received complaints about the coffee machine which he reported to his home office; that "he was not told the complaints were not taken care of."

Richard Page, a repairman, said that he serviced machines in response to complaints at defendant's premises in Glenwood and Crestwood; that he had received no calls to service or repair machines at defendant's Palos Heights offices. He described his duties and stated that "each time he left a job site, the machine would be working."

Leland Smith, plaintiff's manager, said he had negotiated the contract in question and had discussions with Leland Schmitz, an employee of defendant, concerning a service plan. On cross-examination, Smith testified that through his office he received complaints from defendant and had visited defendant's employee (Morphey) concerning them. He stated that it was his understanding that defendant was to be paid its commissions monthly and that when he heard plaintiff might lose defendant's account, he went to their Glenwood office to discuss the matter. When the results of his visit there did not improve the situation, "he went to defendant's general office and asked to see the president, but he was referred to a vice-president with whom he discussed the problems." However, "he was unable to do any good."

Plaintiff then called Kenneth Schmitz as an adverse witness. He was the senior personnel representative at defendant's Glenwood office, and he testified that he had signed the contract for plaintiff's services; that he patronized plaintiff's machines and, while he characterized their operation as "mostly good," his office had received complaints concerning them at least once a day; that his secretary reported to him that between December 1 and April 17 at least 30 calls had been made to plaintiff for service in response to complaints by defendant's employees.

Joanne Prather, plaintiff's general office manager, testified that she had prepared a commission statement and computed the amount of the commission check tendered to defendant which was dated April 9, 1970. This check was in the amount of $260.42 and was apparently the first check received by ...


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