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Preski v. Warchol Construction Co.

OPINION FILED DECEMBER 30, 1982.

BRUNO PRESKI, D/B/A PLAZA EXCAVATING CONTRACTORS, PLAINTIFF-APPELLANT AND COUNTERDEFENDANT-CROSS-APPELLEE,

v.

WARCHOL CONSTRUCTION COMPANY, INC., DEFENDANT-APPELLEE AND COUNTERPLAINTIFF-CROSS-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. David J. Shields, Judge, presiding.

JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:

After the completion of a construction project, both contractor and subcontractor sued each other. The contractor sued for the cost of completion of work not performed by the subcontractor, and the subcontractor sued for certain sums unpaid and for extras. The trial court found that the subcontractor had breached the subcontract and also denied sub silentio the subcontractor's claims. It also refused to grant the contractor the full amount sought, finding that certain claimed expenditures were unproven. Both sides have appealed. We affirm in part, reverse in part and remand for trial.

In 1973 Warchol (hereinafter called contractor) entered into a construction contract with the Capitol Development Board of the State of Illinois. Thereafter contractor entered into a subcontract with Plaza Excavating Contractors (hereinafter called subcontractor). The subcontract provided that for the sum of $113,500 the "subcontractor shall furnish and install the following described work in accordance with the contract between the Owner and the General Contractor and the Drawings and Specifications titled" followed by the typed provision:

"The DAVEA CENTER, * * *, as per drawings T, L, C1 to C5, 1 to 23, FS-1, FS-1M, FS1-V, FS-1E, S1 to S10, P1 to P13, H1 to H15, ME1 to ME3, LC1 to LC8, E1 to E12, SE1 to SE9 all dated 3/23/73 and specifications. Addendum #1 dated 4/2/73, Addendum #2 dated 4/11/73 and Addendum #3 dated 4/18/73 all as prepared by Daverman Associates, Inc., Architect and Engineers. EARTHWORK complete, including grubbing, tree removal, demolition, stripping, cut and fill work, excavating, trenching, backfilling (within the building and exterior sidewalks with granular fill), 4" minimum sand under slab, grading, removal of spoil, construct access road (stone excluded), retention pond, accessories and auxiliary work.

Work to be done in accordance with job schedule requirements.

Site to be rough graded and trenching started within 3 weeks.

Furnish excavating equipment for ground breaking ceremony.

If Warchol Construction Company authorizes in writing the following alternate work, same to be included for their respective prices:

Alternate G-11 (spreading of top soil) .... $19,800.00 Alternate G-6 ............................. $1,675.00[sic] Alternate G-7 ............................. $ 1,900.00 Alternate G-8 ............................. $ 375.00

EXCLUSIONS

NO SHEETING, SHORING OR PUMPING NO HAND LABOR NO FROST RIPPING NO ENGINEERING OR LAYOUT WORK NO SOILS TESTING"

The subcontractor completed much of the work and was paid $96,300. In 1974 the contractor demanded that the subcontractor spread the topsoil which had been removed and stored in a mound. The subcontractor claiming this fell within alternate G-11 of the specifications refused to do so unless paid $19,800. The contractor took subcontractor's claimed interpretation of the specifications first to the architect and then to arbitration; both ruled that the placement of topsoil was part of the base bid and not part of alternate G-11. Capitol and contractor were parties to these proceedings; subcontractor was not. However, the evidence indicates that the subcontractor did attend the arbitration hearing and testified there. Contractor acquiesced in the findings and demanded that subcontractor perform. Subcontractor refused to return to the job and other subcontractors were hired.

The trial court, after hearing all of the evidence, found that the subcontractor had been paid $96,300 of the $113,500 contract price, leaving $17,200 unpaid. Certain work could not be done by subcontractor for various reasons beyond its control; this included completion of cutting and grading a retention pool, the backfilling of certain curbs, and the furnishing and compacting of sand for various sidewalks. The amount which would have been paid for the work if done would have been $8,272. The evidence also showed that subcontractor failed to complete other work, but as to some of its work the amount spent by contractor to have the work completed by others was insufficiently shown. It was established that $1,534 was spent for debris and the removal and the cutting of a loading dock and $12,022.05 to complete the grading and spreading of the topsoil, which work the court agreed was not the fine grading falling under G-11. The court awarded the contractor $4,628.05, the difference between the total amount of proved expenses incurred by the contractor and the total amount unpaid under the contract.

I

The subcontractor's defense is based on the premise the the words "spreading of top soil" controls the rights of the parties. It is, however, improper to take words of a contract out of context or read only one provision alone. Rather a contract must be read as a whole and all parts construed together. (White v. White (1978), 62 Ill. App.3d 375, 378 N.E.2d 1255.) Furthermore, in light of the specific adoption in the subcontract of the drawings and specifications provisions of the prime contract, those provisions become as much a part of the subcontract as if they were expressly written in it. (City of Lake View v. MacRitchie (1890), 134 Ill. 203, 25 N.E. 663; Intaglio Service ...


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