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Delta Construction, Inc. v. Dressler





APPEAL from the Circuit Court of Will County; the Hon. THOMAS W. VINSON, Judge, presiding.


Plaintiff Delta Construction, Inc. (hereinafter called Delta), appeals from an order of the Circuit Court of Will County granting defendant's motion for judgment at the close of the plaintiff's case.

From the record it is shown that Delta instituted an action against Phil Dressler, individually, and d/b/a Phil Dressler & Associates (hereinafter called Dressler), and, also, against Lockport Township Park District to recover moneys due it under a contract for the asphalt paving of tennis courts and a parking lot at the park district's racquet club.

Count I of the complaint alleged a contract with Dressler, the general contractor, in the amount of $53,824.19, which sum included moneys due on account of various items of extra work which were allegedly performed by Delta at Dressler's request. A second count of the complaint, against the park district and Dressler, was dismissed pursuant to section 48 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 48) by reason of Delta's failure to bring the action within the period prescribed by statute. The park district was dismissed at that time from the proceeding and no appeal has been taken from the dismissal of that count.

A bench trial was held on count I and, after presentation of Delta's case, defendant Dressler moved, pursuant to section 64(3) (Ill. Rev. Stat. 1977, ch. 110, par. 64(3)), for a judgment at the close of plaintiff's evidence. The trial court granted the motion and dismissed the cause, stating that plaintiff had failed to prove a prima facie case. Appeal is taken from the order granting the motion and the consequent dismissal of the action instituted by Delta.

On appeal in this court, Delta contends that its evidence was sufficient to establish a prima facie case for the amount due on the contract and for the extras, and that the trial court's decision is contrary to the manifest weight of the evidence. We recognize, on the basis of established precedents, that section 64(3) of the Civil Practice Act provides that in ruling on the motion, the trial court shall weigh the evidence. As regards the duties of the trial court on a section 64(3) motion, the Illinois Supreme Court stated in City of Evanston v. Ridgeview House, Inc. (1976), 64 Ill.2d 40, 57-58, 349 N.E.2d 399:

"In ruling on the defendant's motion for judgment, therefore, the judge had the duty to pass on the credibility of the witnesses and consider the weight and quality of the evidence. In weighing the evidence, the court had the responsibility to consider all the evidence, including any favorable to the defendant."

Therefore, it is customary to state that a decision of a trial court on a motion such as the one with which we are concerned normally would not be disturbed unless it is contrary to the manifest weight of the evidence. (City of Evanston v. Ridgeview House, Inc. (1976), 64 Ill.2d 40, 58.) A reviewing court, however, must re-examine the evidence to determine whether the trial court, after weighing the evidence, erred in deciding that there was a failure to make a prima facie case. Jackson v. Navik (2d Dist. 1976), 37 Ill. App.3d 88, 346 N.E.2d 116.

In analyzing the cause before us, we note that the record shows that Delta and Dressler entered into a written contract on August 18, 1975, by the terms of which Delta agreed to provide a stone base and an asphalt surface for indoor tennis courts at the racquet club, and to also provide a stone base and asphalt surface for the adjacent outdoor parking lot. The contract provided for lump sum payments of $35,358 and $13,230, respectively, upon completion of the paving. Construction on the tennis courts and parking lot began shortly after Dressler had accepted the contract on August 18, 1975. From the record, it is apparent that the first modification of the contract occurred shortly thereafter, according to James Lavan, Delta's estimator and chief negotiator with Dressler on the paving job. The original contract called for Delta to prepare the stone base for the tennis courts, but when Delta began work it found that a stone base had already been laid by another party. As a result, Lavan and Phil Dressler met to negotiate an appropriate adjustment to the contract. They agreed upon a lump sum credit to Dressler, in the amount of $9,500, by reason of Delta being relieved of providing the stone base as specified in the written contract. In conjunction with the credit agreed upon, Dressler agreed to an extra charge, on a time and materials basis, for necessary work by Delta in preparing the existing stone base for the asphalt covering. On the basis of the record as submitted, all negotiations for this and subsequent modifications of the contract were conducted orally, although, according to Lavan's testimony, Dressler would sign all time sheets which reflected the extra work agreed upon by the parties. An invoice covering the modification concerning the stone base as well as the extra work involved in preparing the base was submitted by Delta to Dressler on August 29, 1976, and it was paid promptly.

Lavan further testified in the trial court, that, as work progressed on the job, other modifications in the contract were orally agreed upon between Delta and Dressler. Lavan stated that after Delta had completed its surfacing of the tennis courts, Dressler requested that Delta have its men help in the laying of the carpeting on the tennis courts, a job and work outside the original contract. Again, as stated by Lavan, Dressler agreed to pay on a time and material basis, as per original contract rates, for the extra work requested. Lavan testified to two other occasions when Dressler requested Delta to do work outside the contract on a time and material basis. Delta was requested to perform extra work in installing some culverts and backfilling some curbing which was not part of the original contract. Delta also worked with cleaning up some oil spillage on the tennis courts occasioned by the electrical subcontractor on the job, which it was requested to do by Dressler. Lavan stated that Dressler directed Delta to do the cleanup work, again on a time and material basis, since it was also outside the original scope of the contract between the parties. Lavan also testified that after each of the extra jobs were completed, Delta would have Dressler sign the time sheets on the extra work that had been done by Delta's crews. Lavan's testimony, concerning Dressler's request for work outside the contract and Dressler's agreement to pay on a time and material basis, stands uncontradicted in the record on appeal in this cause at this stage of the proceedings. The total amount alleged to be due, under the original contract, as modified to include the credit for the existing stone base, as well as the liabilities for the extras requested, was $53,824.19. Delta concedes that Dressler has paid $15,474.32 of that amount.

Plaintiff Delta finished its work on the job on October 21, 1975, and on October 27, 1975, it submitted its invoices to Dressler for the remainder claimed to be due under the contract and for the extras performed. The invoices concerning the extras were based, according to Lavan, on the time sheets signed by Dressler. About the time the invoices were sent, Dressler voiced the park district's objection to the appearance of the parking lot, for the reason that there were areas of discoloration which gave the lot a patched appearance. In response to this report, Delta applied a sealer on the entire parking lot and repainted its parking stripes. Objection was also made at that time to the poor drainage off the surface of the parking lot and Delta offered to apply a one-inch overlay on the entire surface to cure that problem. No evidence was produced of any objections to the tennis court work and the paving job done on the tennis courts by Delta. With reference to the drainage problem on the parking lot, no action was taken on Delta's offer to overlay at Delta's expense. The invoices submitted to Dressler were not paid. Lavan testified that it would cost Delta approximately $2,000 to cure the drainage problem by laying the overlay coat of asphalt, which it offered to do at its expense, and not charged to Dressler.

• 1 The position of Delta is that there has been substantial performance as applied to the written contracts and that it has met the burden of proving a prima facie case which would justify a recovery. The doctrine invoked, as applied in construction and building cases, is discussed extensively in Watson Lumber Co. v. Mouser (5th Dist. 1975), 30 Ill. App.3d 100, 104-08, 333 N.E.2d 19, and in Watson Lumber Co. v. Guennewig (5th Dist. 1967), 79 Ill. App.2d 377, 226 N.E.2d 270. The modern formulation of the doctrine in Illinois allows recovery from a buyer where there has been substantial performance of a contract, even though there may be some omissions or defects in the contract's performance, as measured by the strict terms of the contract. To recover under a substantial performance theory:

"`It is sufficient that there is a substantial performance in good faith or that there is an honest and faithful performance of the contract in its material and substantial parts, with no willful departure from, or omission of, the essential points of the contract.'" Watson Lumber Co. v. Mouser, 30 Ill. App.3d 100, 105, quoting from Broncata v. Timbercrest Estates, Inc. (1st Dist. 1968), 100 Ill. App.2d 49, 241 N.E.2d 569.

• 2 In substantial performance cases, the burden is on the contractor to establish the elements necessary to substantial performance recovery and, also, to show the amount he should recover. In typical cases, recovery will be the contract price reduced by the amount based upon the difference between what the owner got by actual performance as compared to what he bargained for. (Watson Lumber Co. v. Guennewig (5th Dist. 1967), 79 Ill. App.2d 377, 397.) One measure of such recovery is outlined in Watson Lumber Co. v. Mouser where the court used the rule set out in Mason v. Griffith (1917), 281 Ill. 246, 255, 118 N.E. 18, that the "necessary expense of performing the work according to the requirements of the contract should be deducted from the amount due" to the contractor under the contract. (Watson Lumber Co. v. Mouser (5th Dist. 1975), 30 Ill. ...

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