APPEAL from the Circuit Court of Cook County; the Hon. DANIEL
P. COMAN and the Hon. JAMES D. CROSSON, Judges, presiding.
MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
The instant appeal involves an action by subcontractors to enforce collection of a claim for labor and materials furnished by plaintiffs on a construction project. The complaint, as amended, alleged that the corporate defendant, J.M. Brickman Mid-West Corp., had assumed the liability of the project owner and that the individual defendant, Joseph M. Brickman, had personally guaranteed payment of a promissory note given in payment of the claim. Defendants filed an answer to the complaint and a counterclaim alleging that plaintiffs had failed to perform certain contractual obligations and demanding money damages. Pursuant to plaintiffs' motion, the trial court granted summary judgment in favor of plaintiffs on the amended complaint in the amount of $240,000 plus 8% interest. The case was subsequently assigned for trial on the counterclaim and after denying a motion for a continuance, the trial court entered an order on January 3, 1977, dismissing the counterclaim for want of prosecution. Defendants then filed a motion to vacate the order of January 3, 1977. On January 17, 1977, the trial court ordered that the motion to vacate be denied. Defendants now appeal from the order granting summary judgment in favor of plaintiffs on the amended complaint, the order dismissing the counterclaim, and the order denying the motion to vacate the order of dismissal.
On appeal defendants argue (1) that the trial court erred in entering summary judgment in favor of the plaintiffs because (a) there existed genuine issues of material fact presented by the pleadings and documentary evidence and (b) the documents filed in support of the motion for summary judgment do not support the relief granted; and (2) that the trial court abused his discretion in dismissing the counterclaim for want of prosecution.
We affirm in part, reverse in part, and remand.
In July of 1972, plaintiffs filed their complaint alleging that they were subcontractors of Y-K Builders on a project known as The Galaxy Apartments in Mt. Prospect, Illinois; that they performed labor and furnished materials pursuant to their subcontracts; that although they were ready, willing and able to complete their jobs, Y-K Builders breached the contract in failing to pay the plaintiffs as required by their contract; and that as a result of this breach the plaintiffs ceased work on the project. The complaint went on to allege that Spancrete of Illinois, Inc., filed suit to foreclose its mechanic's lien; that the other plaintiffs, Campione Construction Company, Inc., Rand Steel, Inc., Otis Elevator Company and Niles Construction Company, were either named as defendants or intervened in the suit to foreclose the mechanic's lien; that during the prosecution of the suit, Joseph M. Brickman and J.M. Brickman Mid-West Corp. asserted a claim of interest in the property, appeared in court at a hearing on December 1, 1967, and reached an agreement with plaintiffs. The complaint alleged that the agreement provided that the Chicagoland Investment Corporation execute a promissory note of $240,000 in favor of plaintiffs in return for plaintiffs' promise to complete their contracts. The note also provided that if the first installment of the note was not paid on its due date, October 1, 1970, then the entire amount of the note would be due immediately. The complaint further alleged that defendants failed to make the first payment on the note when due; that plaintiffs then agreed to extend the time for payment on the first installment in consideration for a higher interest rate; and that despite the fact that the plaintiffs have fully performed all duties and obligations under their construction contracts and the subsequent settlement agreement, no payment had been received on the note, the underlying construction contracts, or the settlement agreement. The complaint also alleged that subsequent to the execution of the note, Chicagoland Investment Corporation merged with J.M. Brickman Mid-West Corp., which assumed full liability for the obligations of Chicagoland Investment Corporation. The complaint prayed for judgment against Joseph M. Brickman and J.M. Brickman Mid-West Corp. in the amount of $240,000 together with interest and costs.
Pursuant to defendant Joseph M. Brickman's motion, the trial court dismissed the complaint because it failed to state a cause of action against him individually. Plaintiffs, pursuant to leave of court, then filed an amended complaint which added the allegation that Joseph M. Brickman made a personal guaranty on the record in open court to pay the plaintiffs 90% of their expenditures on the construction project, and despite the fact that the plaintiffs performed all contractual obligations, Joseph M. Brickman refused to make any payment on his personal guaranty to the plaintiffs.
The answer of J.M. Brickman Mid-West Corp. admits that plaintiffs performed services and supplied materials prior to the commencement of the foreclosure action on the mechanic's lien; that the J.M. Brickman Mid-West Corp. was a contractual seller of the property sought to be foreclosed; that pursuant to a hearing in open court, the alleged settlement agreement was reached wherein the plaintiffs agreed to complete construction on the Galaxy Apartments in return for the promissory note of Chicagoland Investment Corporation; that Chicagoland executed the promissory note attached to the complaint; that the first payment was not paid when due; and that Chicagoland merged with J.M. Brickman Mid-West Corp.
Defendants later filed an amended answer to the amended complaint. In response to count I, the amended answer alleged that there was a failure of consideration due to plaintiffs' failure to complete the work within a reasonable period of time, failure to perform the work in a good and workmanlike manner, and installation of defective materials. In response to count II of the amended complaint, the individual defendant admitted in the amended answer that he was not a party to the foreclosure action and that he had refused to make payments to plaintiffs. The amended answer of Joseph Brickman also raised six affirmative defenses to count II of the amended complaint, viz., that there existed no privity of contract between plaintiffs and himself; that at the time of his personal guaranty of the corporate obligation, neither the promissory note nor the corporation were in existence; that the statute of frauds bars the debt; that his oral promise is unenforceable because the promissory note is complete on its face and all prior negotiations are merged into that document; that the transcript of the court proceedings upon which the plaintiffs base their claim of a personal guaranty is not certified; and that the plaintiffs are guilty of laches in the institution of this litigation.
The defendants' counterclaim alleges that the counterdefendants failed to fully perform their contractual obligations in connection with the Galaxy Apartments project and that as a direct result of this failure the counterplaintiffs suffered monetary damages from the loss of interim and end loan mortgage commitments, higher interest rates on substitution mortgages, costs of corrective work, and the like.
On July 11, 1975, the trial court granted the plaintiffs leave to file instanter their motion to strike and dismiss the defendants' counterclaim. On August 1, 1975, J.M. Brickman Mid-West Corp. filed its reply to this motion. The trial court never ruled on this motion.
Defendants contend that the trial court erred in entering summary judgment on plaintiffs' complaint because there existed genuine issues of fact presented by the pleadings and documentary evidence. Before we can resolve the question of whether the trial court properly entered summary judgment we must consider a preliminary question raised by plaintiffs. Plaintiffs argue that defendants' brief raised only one disputed question of fact which would preclude the entry of summary judgment, viz., whether plaintiffs performed their obligations under the contract. Plaintiffs urge that any other alleged questions of fact not raised in defendants' brief are waived. We note that at various places in their brief defendants refer to these disputed questions of fact. They state that the complaint and amended complaint repeatedly assert that "there was a failure of consideration" and that the plaintiffs counterdefendants have been "in gross and wilful default of all their duties and obligations as specified in the answer to the bill of particulars." They also state that the affidavits "failed to refute defendants' delegations [sic] and affirmative defenses to the effect that plaintiffs had breached their contract. * * *" After careful consideration of defendants' brief, we conclude that the only question of fact therein urged is whether plaintiffs performed their obligations under the contract. As a result all other questions are waived. See Wright v. McGee (1970), 131 Ill. App.2d 522, 264 N.E.2d 882.
1 However, after examining the pleading we note that defendants, in their amended answer, allege that plaintiffs failed to complete the work within a reasonable period of time or in a good and workmanlike manner. They further state in that amended answer that plaintiffs installed defective materials. We believe the quality of plaintiffs' work and materials is included in the question of whether plaintiffs performed their obligations under the contract and that these questions were not waived.
We next reach the issue of whether the trial court erred in entering summary judgment in plaintiffs' favor. Section 57(3) of the Civil Practice Act (Ill. Rev. Stat. 1975, cp. 110, par. 57(3)) provides that summary judgment shall be rendered under the following circumstances:
"* * * if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is ...