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Butkovich & Sons v. State Bk. of St. Charles

OPINION FILED AUGUST 3, 1978.

GEORGE BUTKOVICH & SONS, INC., PLAINTIFF-APPELLEE,

v.

STATE BANK OF ST. CHARLES, TRUSTEE, ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Du Page County; the Hon. BRUCE R. FAWELL, Judge, presiding.

MR. JUSTICE WOODWARD DELIVERED THE OPINION OF THE COURT:

George Butkovich & Sons, Inc., building contractors, filed suit to foreclose a mechanics lien for work performed on defendant Hubert Grane, Jr's home at 33 Mockingbird Lane, Oak Brook, Illinois.

On May 16, 1969, the parties entered into a contract under which plaintiff would provide and perform the following:

"Excavating, backfilling, no hauling, concrete, caissons, caisson rebars, masonry $70/M, steel, gravel for drive, flat work, fibre glass water proofing, glass blocks, cleaning, basement windows, install under ground garbage cans furnished by owner, meet grade provisions according to Oakbrook standards, chimney.

Concrete mortar for brick sills.

Rear patio square footage as per plan — shape to be decided by owner."

The contract further provided:

"WE [plaintiff] PROPOSE to furnish labor and material — complete in accordance with above specifications, and subject to conditions found on both sides of this agreement, for the sum of Nineteen thousand two hundred ninety — dollars ($19,290.00) Payment to be made as follows:

$10,000 upon completion of foundation and delivery of brick

$5,000.00 upon completion of brick work

Balance 30 days after completion of contract."

Defendant paid the first $10,000 due on the contract but subsequently disputes arose concerning plaintiff's performance; no further payments were made and plaintiff then commenced this action in which it claims the balance of the contract price plus payment for extras. Following a bench trial, the trial court found in favor of plaintiff and against defendant and awarded plaintiff $10,000 in damages. Defendant appeals.

Defendant contends that the finding of the trial court that plaintiff has substantially performed under the contract was contrary to the manifest weight of the evidence. We agree and reverse and remand this case for a new trial.

• 1 The ordinary rule applied in cases involving building contracts is that a builder is not required to perform perfectly, but rather, he is held only to a duty of substantial performance in a workmanlike manner. (Watson Lumber Co. v. Guennewig (1967), 79 Ill. App.2d 377, 226 N.E.2d 270.) The purchaser who receives substantial performance of the building contract must pay the contract price less a credit as compensation for any deficiencies existing in what he received ...


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