United States District Court, Northern District of Illinois, E.D
October 18, 1982
HI-GRADE CLEANERS, INC., PLAINTIFF,
AMERICAN PERMAC, INC., DEFENDANT.
The opinion of the court was delivered by: Grady, District Judge.
This is a case involving an alleged breach of a contract for
delivery and installation of dry cleaning equipment. In Count
I of its second amended complaint, plaintiff Hi-Grade
Cleaners, Inc. claims breach of contract. In Count II,
plaintiff claims misrepresentation. It is the second count
that is the subject of defendant's motion to dismiss, which is
now before the court.
We assume the facts as stated in the complaint. Plaintiff
and defendant American Permac, Inc. entered into a contract
for the sale and installation of dry cleaning equipment on
November 6, 1980. The contract was modified and superceded by
a second contract dated December 12, 1980. The modified
contract provides for payment of $9,300.00 upon acceptance of
the contract. Plaintiff has paid this amount. The defendant,
however, has not performed under the contract despite a
provision stating, "Time is of the essence. Seller shall
complete delivery and installation of all machines and
equipment herein no later than February 28, 1981." Various
persons affiliated with defendant in telephone conversations
with plaintiff told plaintiff that defendant intended to meet
its obligations under the contract. In reliance upon these
promises of performance, plaintiff forwarded to defendant
monies due under the contract and did not purchase the
machinery elsewhere. Defendant received the monies with the
full knowledge that it did not intend to perform its agreement
Defendant contends that plaintiff has unsuccessfully
attempted to transform a complaint which originally purported
to allege fraudulent misrepresentation into a complaint
stating a claim for negligent misrepresentation. We heard oral
argument on the motion and took the matter under advisement
after requesting that plaintiff file a reply brief.
In McAfee v. Rockford Coca-Cola Bottling Co., 40 Ill. App.3d 521,
352 N.E.2d 50 (1976), the court held that negligent
misrepresentation was adequately pleaded where agents of an
employer promised a job to plaintiff. The McAfee court in
reaching its decision expanded upon the rationale expressed in
Rozny v. Marnul, 43 Ill.2d 54, 250 N.E.2d 656 (1969), in which
the court held that a surveyor who misrepresented the accuracy
of his survey was liable under a tortious misrepresentation
theory. Although express warranties were involved in Rozny, the
McAfee court stated: "[W]e believe it is clear that the basis
of the decision was negligence, since the facts did not
indicate either an intent to deceive or culpable recklessness
in making the representation." McAfee, supra, at 54.
To state a cause of action for negligent misrepresentation,
plaintiff must allege a duty owed by defendant to plaintiff,
a breach of such duty, and injury resulting proximately from
such breach. Duhl v. Nash-Realty, Inc., 102 Ill. App.3d 483, 57
Ill. Dec. 904, 429 N.E.2d 1267 (1981). In Duhl, defendant real
estate brokers misrepresented the value of plaintiffs' home.
The court, in upholding plaintiffs' cause of action, cited the
First Restatement of Torts for the definition of negligent
misrepresentation. The latest restatement provides:
Information Negligently Supplied for the Guidance
(1) One who, in the course of his business,
profession or employment, or in any other
transaction in which he has a pecuniary interest,
supplies false information for the guidance of
others in their business transactions, is subject
to liability for pecuniary loss caused to them by
their justifiable reliance upon the information,
if he fails to exercise reasonable care or
competence in obtaining or communicating the
Restatement of Torts (Second) § 552.
The Restatement and the notes accompanying the earlier
tentative drafts for the Restatement*fn1 appear to limit the
tort of negligent misrepresentation to persons and entities in
the business of selling information which their customers
might rely upon in taking some additional action. The cases
involve abstractors of title, attorneys, surveyors, inspectors
of goods, operators of ticker services, and banks dealing with
non-depositors' cheeks.*fn2 A recent opinion, Moorman Mfg. Co.
v. National Tank Co., 91 Ill.2d 69, 61 Ill.Dec. 746,
435 N.E.2d 443 (1982), describes the case which established the tort in
Illinois, Rozny v. Marnul, 43 Ill.2d 54, 250 N.E.2d 656 (1969),
as involving defendants in the business of supplying
information. Moorman did not expressly limit Rozny to cases
involving such defendants, but the description is consistent
with the case law and the Restatement, which is entitled,
"Information Negligently Supplied for the Guidance of Others."
We have found no cases supporting an action for negligent
misrepresentation where a party to a contract stated that it
would perform under the contract and then did not. The case
law and the Restatement apparently confine the tort of
negligent misrepresentation to persons and entities in the
business of selling or supplying information which their
customers will rely upon in taking some additional action.
Since defendant was not in that business, we dismiss
plaintiff's second count for negligent misrepresentation.
Basically, we believe that when a defendant is already
contractually bound to the plaintiff, his assurance that he
will perform in accordance with the contract is simply a
reiteration of his original promise. It creates no additional
liability in contract, let alone in tort.
For the foregoing reasons, defendant's motion to dismiss
Count II of plaintiff's second amended complaint is granted.
No further amendments of the complaint will be permitted.