APPEAL from the Circuit Court of Cook County; the Hon. WALTER
J. KOWALSKI, Judge, presiding.
MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
B.R. Abbot Construction Company (hereinafter Abbot), appeals an order of the circuit court of Cook County granting a motion for judgment in accordance with a settlement agreement. The order dismissed the cause and also implemented an oral settlement agreement made by Abbot, Sheffield Poly-Glaz, Inc. (hereinafter plaintiff), and Humboldt Glass Company (hereinafter Humboldt). *fn1 The issue to be decided on appeal is whether the trial court erred in entering the above order.
The general background giving rise to the commencement of this suit is in part as follows. The Chicago Housing Authority (CHA) contracted with Abbot for a certain construction job. Abbot then contracted with Humboldt for the glazing of windows required by this job. Humboldt purchased the window material from plaintiff and failed to pay plaintiff for this material. Plaintiff then placed a mechanic's lien in the amount of $9,270.05 upon funds due Abbot from CHA.
On September 5, 1972, plaintiff filed a complaint for accounting in chancery to collect on its mechanic's lien. (Ill. Rev. Stat. 1971, ch. 82, par. 23.) This complaint named Humboldt, Abbot, and CHA as defendants. CHA was ordered to pay $9,270.05 to the clerk of court, subject to further order of the trial court, and was dismissed from the suit. Plaintiff later filed an amended complaint.
Abbot's answer to the complaint and amended complaint denied that the materials supplied by plaintiff conformed to the requirements of the contract between Abbot and Humboldt. Abbot alleged the materials furnished by plaintiff were rejected by CHA and had to be replaced from other sources, at an excess cost over its contract price with Humboldt. Abbot counterclaimed against plaintiff for damages in the amount of $70,000. Abbot further alleged Humboldt never performed its duties under the contract and cross-claimed against Humboldt for breach of warranty and for defective windows and glazing, seeking damages in the amount of $70,000.
Various other allegations and denials were set forth in the pleadings involving other parties and jobs, none of which are directly pertinent to the issue now before this court.
On April 23, 1974, because of the many claims which had been filed, this matter was transferred to the law division of the circuit court of Cook County. At a pretrial in the law division, the matters giving rise to this appeal took place.
Attorneys for Abbot, Humboldt, plaintiff, and a representative of National Ben Franklin Insurance Company *fn2 met to discuss possible pretrial settlement of this matter. After arriving at possible settlements, the attorneys contacted the parties and explained the proposal. Counterproposals were presented. It is undisputed that on June 10, 1975, the attorneys arrived at a proposed settlement in the presence of the trial court, which was reported by each attorney to his client, and then reported back to the group. According to the attorneys, including counsel for Abbot, the proposed settlement was acceptable. The trial court then ordered the parties to draw an order to be presented the following day in order to dispose of the litigation.
However, prior to the entry of such an order, counsel for Abbot had a discussion with his client, Norman Rubin, president of Abbot, and allegedly learned his client had not understood the terms of the settlement. Rubin allegedly believed he was to receive the $9,270.05 being held by the clerk of court, plus an additional amount of $6,000 provided for in the settlement. However, the terms of the settlement, as understood by the other parties and by counsel for Abbot, provided that the $9,270.05 was to be distributed as follows:
Plaintiff - $2,270.05 Abbot - $6,000.00 Humboldt - $1,000.00
After learning of this misunderstanding between himself and his client, counsel for Abbot notified the parties and the trial court that the settlement was no longer acceptable to his client. Plaintiff moved the trial court to enter judgment in accordance with the oral settlement agreement, and attached an appendix to its motion setting forth the terms of the alleged agreement. Abbot moved to strike this motion and attached affidavits of Mr. Rubin and of counsel for Abbot, explaining the alleged misunderstanding.
After considering the briefs and arguments concerning these motions, the trial court dismissed the cause of action with prejudice and ordered performance of the settlement agreement. It ordered the $9,270.05 held by the clerk of court to be disbursed as understood by the attorneys and set out above. The order also contained many other provisions not directly pertinent to this opinion.
Commenting on this order, the trial court stated:
"[N]ot only was I present during informal discussions, I was present here when the agreement was formalized and agreed upon totally; and I don't believe there is any aspect of this Order that does not conform to my recollection ...