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Wick Building Systems v. Bunning





APPEAL from the Circuit Court of Peoria County; the Hon. WILLIAM H. YOUNG, Judge, presiding.


Wick Building Systems, Inc. (Wick), a manufacturer of agricultural buildings, on March 28, 1978, entered into an agreement with William H. Bunning, Jr. (Bunning), whereby Bunning would be a dealer for the sale of such buildings. On August 21, 1978, Bunning assigned his dealership agreement to Mel-O-Dee Builders, Inc. (Mel-O-Dee), a business owned by Bunning. The assignment agreement contained language, the effect of which was to make Bunning a guarantor to an extent later to be determined of certain obligations. The assignment of the dealer agreement was approved of and consented to by Wick.

On June 4, 1979, Mel-O-Dee ordered from Wick a hog confinement building to be delivered to a customer. Prior to various change orders the contract price for the building was $14,926. Mel-O-Dee also had delivered to Wick its promissory note in the sum of $12,493.82. On March 31, 1980, the plaintiff Wick filed suit against Mel-O-Dee and Bunning for payment of the promissory note and for final payment of $12,607.50 under the June 4, 1979, contract for construction of the hog confinement building. On June 16, 1980, the circuit court of Peoria County dismissed counts I and II of Wick's complaint for lack of jurisdiction. No appeal from the dismissal of the counts was taken. On September 25, 1980, counts III and IV alleging that money was due to the plaintiff Wick from Bunning as guarantor of the corporate defendant Mel-O-Dee were dismissed for failure to state a cause of action; however, the court granted Wick 21 days to file an amended complaint. Wick took no further action in the case until April 7, 1981, when it filed a motion for a final judgment order. Over Bunning's objection the court on July 29, 1981, entered a final order of dismissal whereby Wick's complaint was dismissed without leave to amend. This appeal ensued.

As the issues in this appeal are addressed, the pleadings, court orders and contractual agreements will be set forth as they become pertinent.

The defendant Bunning first contends that Wick failed to file a timely appeal from the trial court's order of September 25, 1980, and that this court does not have jurisdiction to review the circuit court's dismissal of the complaint.

• 1 This jurisdictional issue is raised by the defendant Bunning in his appellee's brief and is predicated upon the argument that even though Wick was granted the right to amend its pleadings, the trial court's order of dismissal of the complaint was not grounded on technical defects, but was based on a determination that the factual allegations in the complaint were insufficient to state a cause of action as a matter of law. Bunning further argues that the dismissal order was final because Wick did not in fact amend or attempt to amend its complaint, which is indicative of a conclusion that the plaintiff Wick acknowledged that the complaint could not be cured so as to state a cause of action and hence it was a final appealable order from which Wick did not file a notice of appeal within 30 days. Bunning's argument is appealing, since it is obvious that the court's order of September 25, 1980, was directed at the substantive allegations of the complaint; however, to adopt such argument would require a determination in many instances as to the basis for a trial court's order of dismissal, and it is conceivable that in many instances the picture could be a cloudy one. The better and correct rule to apply is that an order of dismissal followed by an election to stand on the complaint is not a final appealable order until a subsequent order dismissing the suit is entered. This is true even if the time granting leave to amend the complaint has run. (See Martin v. Marks (1980), 80 Ill. App.3d 915, 400 N.E.2d 711.) We reject Bunning's argument and hold that this court does have jurisdiction of this appeal.

Wick further asserts that the trial court incorrectly dismissed counts III and IV of its complaint on the grounds that they failed to state a cause of action.

Counts III and IV of the complaint, which sought liability from Bunning, were predicated upon language contained in paragraph 8 of the dealer agreement and paragraph 3 of the assignment agreement from Bunning to Mel-O-Dee.

Paragraph 8 of the dealer agreement provides as follows:

"Erection and Payment. Dealer shall coordinate erection details between manufacturer and customer, and between any other tradesmen hired by customer, to assure the orderly and prompt completion of Wick Agri-Buildings. Dealer understands that unless otherwise specifically and expressly agreed, the purchase price shall be paid as set forth in the customer's purchase order as accepted by Manufacturer.

Dealer shall be responsible for collection of the purchase price of the Wick Agri-Buildings product from customer within the times provided therefore, and shall promptly forward any and all payments upon receipt. All checks and drafts shall be made directly payable to Wick Agri-Buildings Division of Wick Building Systems, Inc.

It shall be the responsibility of Dealer to secure customers for Manufacturer which are financially solvent, and to aid and assist customers as necessary in obtaining of necessary mortgage loan financing. (It is not anticipated nor intended by this provision that Dealer should become an `arranger of financing' or `arranger of credit' as those or similar terms are defined by applicable Trust-In-Lending laws.)

Accordingly, in the event customer shall fail, or be unable to pay the full purchase price to Manufacturer, through no fault or neglect on the part of the Manufacturer, and if Manufacturer shall have diligently pursued available lien remedies, then Dealer shall, and hereby does agree to, indemnify, and save harmless Manufacturer, and shall thereupon pay to Manufacturer the balance of the purchase price of said Wick Agri-Buildings product, less Dealer's Commission. Upon receipt of said payment, Manufacturer shall assign to ...

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