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Riemer Bros., Inc. v. Marlis Constr. Co.

OPINION FILED SEPTEMBER 14, 1978.

RIEMER BROS., INC., PLAINTIFF-APPELLEE,

v.

MARLIS CONSTRUCTION CO., DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Lake County; the Hon. LLOYD A. VAN DEUSEN, Judge, presiding.

MR. PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:

This is the second appeal based upon the meaning of the language in an earth moving contract:

"Import, grade and compact clay fill $2.75 cu yd."

In the original suit filed by the fill contractor the trial court in a bench trial awarded Riemer Bros. $20,809.24 as the balance due, a judgment which we reversed on appeal and remanded for a new trial. (Riemer Bros., Inc. v. Marlis Construction Co., 37 Ill. App.3d 842 (1976).) Following a bench trial on remand judgment was entered in favor of Riemer Bros. for $26,386.25 and the land developer Marlis has again appealed.

In the first suit the trial judge found the contract language which we have quoted above to be unambiguous, held that therefore no extrinsic evidence could be produced to explain the intention of the parties; and based its judgment on the construction that the language required payment for each cubic yard brought to the site before grading and compacting. In our previous opinion we noted that "even if" the language were conceded to be unambiguous and open to the construction based on fill brought to the site the amount delivered could not be proved by the showing which was made, for Riemer had testified that it was to be by "cross section" yet the proof was of the number of truckloads and Riemer's estimate of an average load for each truck with a "spot check" of one out of every three or four trucks. We noted that Riemer's agent on the job had discouraged Marlis' employees from checking the truckloads as being irrelevant; that no truck tickets were produced and that there was a great discrepancy in Riemer's computation based on the truckloads and the amount of 33,264 cubic yards which was stipulated to be in place. We further noted that there was an improper reference to a notation which was not part of the contract which was offered to show possible shrinkage to account for some of the difference. 37 Ill. App.3d 842, 845-48.

On remand, the trial court perhaps finding a suggestion in our opinion that the contract was ambiguous although we did not directly reach the issue, permitted extrinsic evidence in explanation of the contract terms. Marlis' expert witness Louis Hooper testified that there were two customary methods of measuring clay fill in earth-moving contracts, either by cross-sectioning of the area to be filled before and after the fill was put in place or cross-sectioning of the borrow pit before and after the fill was removed. He said, however, that a truckload measure would be unusual for clay fill since clay when dumped into a truck leaves a substantial number of voids or air pockets.

John Gnaedinger, plaintiff's expert, testified that in addition to the cross-sectioning methods which Hooper had described truckload measure was another typical mode of measuring clay fill. It appears in context that he was describing a simple quantitative measure of the loose clay in the trucks.

The further proof on behalf of Riemer sought to support its theory that the contract called for in-truck measurements. Riemer kept "trip sheets" or daily driver's reports, which were introduced and indicated that some 3,438 truckloads were hauled onto the construction site. Conrad Riemer, an officer of plaintiff, testified that the trucks were weighed after being loaded and that they sought to get the total weight of the trucks as close as possible to the legal limit of 72,000 pounds. Since the trucks themselves each weighed 31,000 pounds, something in excess of 38,000 pounds of clay fill was computed per truckload, the volume of the loose clay being about 14 cubic yards. Riemer testified that he did not have his drivers give receipts to Marlis for each truckload for various reasons including the fact that it required a prohibitive amount of time to have each driver stop, fill out a receipt and tender it to a Marlis employee and because he deemed Marlis to be trustworthy. Riemer Bros. sent several interim bills to Marlis, however, based on cross-section measurement to which a 20% shrinkage factor was applied; this would approximate the in-truck "loose" clay volume measure.

Ralph Markus, president of Marlis, testified that on the first or second day upon which the fill was being hauled he spoke to Bob Redfield, the field superintendent for Riemer. At this time he said Marlis had engaged a man to count the number of Riemer trucks coming onto the project. Markus testified that Redfield told him that it was ridiculous to count the trucks because "you don't know what's in there and we're going to measure the job in-place, compacted in-place." Redfield denied ever making the statement and testified that he merely told a Marlis employee that "each truck had a trip sheet, and that at any time if he so desired, he may look at these trip sheets to get the truck count for the day." Markus also testified to a conversation he had with David Riemer, an officer of the company, and Tom Boucher on the same day as the previous alleged conversation in which he said that Riemer told him it would be measured in place and that it was not necessary to measure the trucks or count the trucks and there was no need to get the tickets. David Riemer also denied that such a conversation ever took place. Markus further testified that Conrad Riemer told him before the commencement of the job that "the price would be $2.75 a yard delivered to the site and compacted in place." Again Riemer denied that any such conversation had ever occurred.

As pertinent the judgment order appealed from states:

"1. That it was the intent of the parties and the meaning of the language in the contract to wit; `Import, grade and compact $2.75 a cubic yard' that the defendant was to pay to the plaintiff $2.75 for each cubic yard of clay fill which the plaintiff imported to the job site and thereafter graded and compacted." (Emphasis added).

"2. That in compliance with the foregoing terms of the contract the plaintiff imported to the job site a total of 3,438 loads of clay fill at the rate of 12.2 cubic yards per load or a total of 41,944 cubic yards which plaintiff spread and compacted in accordance with the terms of the contract."

We construed similar language in the earlier judgment, concluding that the judge meant loose measure obtained by applying a shrinkage factor of 20% to the cross section measure stipulated by the parties (37 Ill. App.3d 842, 844). The court is apparently holding that the contract calls for loose measure. The parol evidence, however, in our view does not support this finding.

We think that the trial court could properly determine that the contract was ambiguous since arguably the language in question could reasonably be construed to mean either the $2.75 per cubic yard as measured at the moment when the clay was first brought onto the site including air pockets or as ...


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