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Mayer Paving & Asphalt v. C.a. Morse





APPEAL from the Circuit Court of Cook County; the Hon. JOHN C. FITZGERALD, Judge, presiding.


Plaintiff, Mayer Paving and Asphalt Company (Mayer), brought suit against defendants, Carl A. Morse, Inc., of Illinois through its division Diesel Construction Company (Diesel), and Jupiter McClurg, Inc. (Jupiter), as well as against other parties which have been dismissed. The complaint alleged that certain amounts were due for extra work performed in connection with a contract for construction of tennis courts> at McClurg Court, an apartment complex in Chicago. Diesel and Jupiter counterclaimed against Mayer, alleging defective work and materials. After a jury trial, verdicts were returned assessing damages in favor of Mayer for $3900 against Diesel and Jupiter, jointly and severally; in favor of Mayer against Jupiter for $14,400; and in favor of Diesel and Jupiter for $1200 on their counterclaim against Mayer. Post-trial motions filed by Diesel and Jupiter were denied. Judgments were entered in accordance with the verdicts.

Diesel and Jupiter appeal, contending that Mayer did not meet its burden of proof as to its claims; that the damage assessment on their counterclaim was too low and against the manifest weight of the evidence; that the giving of a certain jury instruction constituted reversible error; that remarks made by counsel for plaintiff during closing argument were prejudicial and improperly ruled upon; and that their post-trial motions were erroneously denied. Defendants have also filed a motion with this court to enter an order equitably apportioning the costs of reproducing the excerpts from the record between them and Mayer. The motion was taken with the case.

We affirm the judgment of the trial court, and deny defendants' motion to apportion costs. The pertinent facts follow.

Jupiter is a beneficial owner of a trust involving the McClurg Court apartment complex constructed by Diesel. In July 1971, Mayer subcontracted to construct within the complex two rooftop and three indoor tennis courts>. The contract price was $35,000. The number of rooftop courts> to be constructed was later amended to three. It is undisputed that Mayer was paid a total of $43,000 for work done on the six courts>, which sum includes the contract price and two extras not at issue.

Mayer began work on the courts> in October 1971; then, after a few months' break, resumed work in March 1972. In the interim workmen from other trades also working on the complex damaged the surface of the indoor courts>. Mayer claimed $4500 to repair the damage as an extra to the contract. The jury awarded Mayer $2250 for this claim against Diesel and Jupiter, jointly and severally.

While the two rooftop courts> were under construction, Jupiter increased their number to three. This change necessitated rotating the position of the courts> to fit them on the roof. In conjunction with the rearrangement a drainage problem arose. Mayer claims that it became necessary to build a trough to conduct water, which would accumulate on the outdoor courts>, to the drains contemplated by the two-court plan. Mayer claimed the trough as an extra. The jury awarded Mayer $550 for the trough, against Diesel and Jupiter, jointly and severally.

After completion of the rooftop courts> in June 1972, Diesel notified Mayer of soft spots on these courts>. Mayer repaired these and claims that such repair was extra to the contract. The jury awarded Mayer $1100 for repair of the soft spots against Diesel and Jupiter, jointly and severally.

When work resumed on the courts> after the hiatus, Diesel notified Mayer in July 1972 that the surfacing work on the courts> was not being completed in accordance with the "standard of perfection" required by their contract. At that time Jupiter also chose to put in a cushioned playing surface on the interior courts>, which was other than the surface specified in the contract. Diesel obtained a bid from another contractor to do this work. However, Jupiter agreed to let Mayer complete the interior courts> with a cushioned surface for $14,400, subject to approval of the work by the director of the complex's sports center. The work was completed and Mayer claims this as an extra to the contract. Jupiter argues that the work was never done to its satisfaction and that the director never gave his approval. The jury awarded Mayer $14,400 against Jupiter on this claim.

The counterclaim of Diesel and Jupiter alleged that by providing defective material and labor, Mayer failed to perform under the contract in a workmanlike manner; that other parties were employed to furnish the work and materials necessary to correct the damage done by Mayer and to complete the work; and that damages were sustained in the loss of profit and reputation. It prayed $53,000 in damages against Mayer. At trial, a witness for Diesel and Jupiter testified that another firm was hired to repair the indoor courts> at a cost of $30,060, and the evidence disclosed that of this amount all but $1500 was for installation of a carpet surface not called for by Mayer's contract. This witness also testified that lost court time amounted to about $3000 or $4000 on the indoor courts> while repairs were done. The jury awarded Diesel and Jupiter $1200 on the counterclaim.


• 1 On appeal, Diesel and Jupiter argue that Mayer failed to meet its burden of proof as to its various claims. A contractor seeking to recover for extras must prove by clear and convincing evidence the essential elements set forth in Watson Lumber Co. v. Guennewig (1967), 79 Ill. App.2d 377, 226 N.E.2d 270. He must establish that: (2) the work was outside the scope of his contract promises; (b) the extras were ordered by the owner; (c) the owner agreed to pay extra, either by his words or conduct; (d) the extras were not furnished by the contractor as his voluntary act; and (e) the extras were not rendered necessary by any default of the contractor.

Defendants first argue that Mayer has not met its burden of proving that it is entitled to be paid $550 for the trough and $1100 for soft-spot repair on the rooftop courts>.

The contract required the subcontractor (Mayer) to check the surfaces and advise the general contractor (Diesel) of any unsatisfactory surface. It stated that the start of the subcontractor's work would constitute acceptance of the surfaces, so that any corrective work thereafter would be the subcontractor's responsibility. The contract further provided that if in the subcontractor's opinion he could not proceed with any aspect of the work specified so as to produce work of first-class quality, he should refer the matter to the architect before proceeding. Defendants argue that Mayer did not comply with these ...

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