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Peoples Gas Light & Coke Co. v. Barrett

OPINION FILED SEPTEMBER 15, 1983.

PEOPLES GAS LIGHT & COKE COMPANY, PLAINTIFF-APPELLEE,

v.

GEORGE F. BARRETT, DECEASED, BY DAVID BORTMAN, HIS SPECIAL ADM'R, ET AL., DEFENDANTS-APPELLANTS — (ALICE B. FAULS ET AL., DEFENDANTS).



Appeal from the Circuit Court of Cook County; the Hon. Thomas R. Rakowski, Judge, presiding.

JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

The estate of George Barrett and the deceased's sister, Avis Barrett (defendants), appeal from a summary judgment entered against them on plaintiff's third amended complaint. The judgment was for $17,759.80 owed for gas service provided by plaintiff between September 1977 and August 1978 to a 73-unit apartment building located at Lake and Waller Streets in Chicago. During that time, defendants were several of the beneficiaries of a land trust holding title to the property. On appeal, defendants raise several issues concerning whether genuine issues of material fact existed precluding summary judgment and whether computer printout records adequately established the amount owed.

The record shows that the Lake-Waller building was one of several properties placed in a trust in 1969 with the members of the Barrett family as the trust beneficiaries. The 73-unit building was located on the west side of Chicago, and over the years this building deteriorated into a slum.

Plaintiff filed suit and in the third amended complaint named George F. Barrett by his special administrator, David Bortman (George F. Barrett died during this litigation and a special administrator was appointed upon plaintiff's request), Alice B. Fauls, Avis Barrett, Thomas Barrett and Northern Illinois Industrial Properties, Inc. (NIIP), as defendants. NIIP was a real estate management firm that took over supervision of the Lake-Waller building in February 1978. The record discloses an attempt by most of the trust beneficiaries to assign their interests to NIIP, although the record also suggests that Thomas Barrett did not do so. The trustee bank eventually accepted the assignments in July 1979.

The third amended complaint had four counts. The fourth count was dismissed and the matter proceeded. Count I named George Barrett, Avis Barrett and Thomas Barrett as the owners of the Lake-Waller property and sought $12,060.64 in payments from them for gas provided between September 1977 and February 6, 1978. Count III sought payments from these defendants for gas service between February 6, 1978, and August 29, 1978, when service was terminated. The amount claimed was $5,699.16. Count II sought relief against NIIP based on the same claim as set forth in count III.

On June 9, 1981, the trial court entered a summary judgment as to liability against the estate of George Barrett and Avis Barrett on count I finding they were the owners of the Lake-Waller property during the period in question. On August 4, 1981, the trial court entered summary judgment against the George Barrett estate and Avis Barrett establishing their liability for gas service for the time designated in count III. Summary judgment was entered in favor of NIIP on counts II and III. Finally, on October 13, 1981, damages of $17,759.80 were assessed against the estate of George Barrett and Avis Barrett.

We have originally considered this appeal (No. 81-2763). However, on September 9, 1982, we entered a Rule 23 order (87 Ill.2d R. 23) dismissing the appeal because the record then did not show that the appeal was from a final judgment as to all the parties or that the trial court found that there was no just reason to delay enforcement or appeal of its judgment. (87 Ill.2d R. 304(a).) On further proceedings, these matters were remedied when plaintiff's action against Alice Barrett Fauls and Thomas Barrett was voluntarily dismissed by plaintiff. Defendants and plaintiff have now resubmitted the briefs and record previously filed to stand as the briefs and record in the present case.

• 1 Defendants primarily argue that summary judgment was improperly entered because there were disputed questions of material fact. Defendants' first contention concerns two segments of events. First, defendants note that the gas service was installed in the building in 1976. About that time, George Barrett, a California resident, had taken over supervision of the building and several other properties owned by the Barrett family from Alice Barrett Fauls. A real estate management agent, Egbert Shirley, had day-to-day supervisory duties beginning in 1972 until George Barrett terminated him in January 1978 at the urging of NIIP. There was never a written management agreement between defendants and Shirley. Defendants now contend that a material question of fact existed whether George Barrett ever gave Shirley permission to install the gas service, thereby calling into question their liability under count I of the complaint. Second, defendants claim that under count III there was no liability against them. Defendants maintain that a material question of fact existed whether for that period of time specified in that count ownership had been transferred to NIIP or whether NIIP was merely defendants' agent.

Shirley's actions regarding the gas service are outlined in his deposition presented on the motion for summary judgment. He described the Lake-Waller property as having two stoker-fed coal, steam-heating systems. However, the use of coal created pollution violations, and it appeared that Shirley had to explain the violations in court. In addition, in the mid-1970's the cost of coal had drastically risen and the sole Chicago coal supplier proved unreliable. Shirley indicated that he spoke to either George Barrett or Mrs. Fauls, or both, about the matter and then had the gas service installed. A letter from Shirley to George Barrett, dated November 8, 1976, explained the pollution problems and the cost of coal. This letter purportedly was written shortly after the gas service was requested as indicated by an affidavit of plaintiff's account representative. Apparently, two gas units were placed in the Lake-Waller building.

In George Barrett's deposition, this defendant stated that his gas service was installed without his consent, and he first learned of the matter in the latter part of 1977. Barrett explained that this was one reason why Shirley was discharged. He also stated that Shirley only had authority to collect rents and make ordinary expenditures. Barrett denied being advised by Shirley of the gas payments or gas bills.

Plaintiff takes the position, as the trial court did, that Shirley, as defendants' agent, could take action concerning installation of gas heat that would bind them. However, defendants assert that material issues of fact exist concerning Shirley's authority to bind them as principals.

We must reject defendants' contention. Basically, the relationship of principal and agent imposes a fiduciary obligation upon the agent. (County of Cook v. Barrett (1975), 36 Ill. App.3d 623, 628, 344 N.E.2d 540, 545.) A principal may be bound by his agent's actions: (1) where the principal actually authorizes his agent to act; (2) where the agent has apparent authority; and (3) where the agent exercises an inherent power stemming from the agency relationships. Roscoe Co. v. Lewis University, College of Law (1979), 79 Ill. App.3d 1098, 1101, 398 N.E.2d 1083, 1086.

In the present case, we believe there existed an inherent authority for Shirley to obtain gas service for the Lake-Waller building and, consequently, defendants cannot complain that the result of his actions are binding on them. First, we note that the record contains financial summaries for the building operations from 1974 to 1976. In those years heating costs for the building were about $20,400, $26,000, and $19,300, respectively. These sums were substantial and were generated, in most part, when the fuel source was coal. In addition, there was undisputed evidence that coal produced pollution violations, was expensive, and could be provided only by an unreliable source. It seems that the bills for gas were comparable or somewhat less in comparison to coal and the natural gas was readily available. Obviously, in an attempt to maintain the building and fulfill his obligations to defendants, Shirley, as defendants' agent, discussed the question of gas conversion with them and then proceeded to obtain gas heat in order to benefit defendants and the other trust beneficiaries by continuing the building operations. We must reject defendants' assertions under the circumstances that a genuine issue of material fact existed as to Shirley's authority to procure the gas service.

• 2 Defendants contend that even if Shirley acted properly, they were not liable for gas service after February 1, 1978, as generally set forth in count III of the third amended complaint. In this regard, the record shows that NIIP entered the picture shortly before this time when George Barrett attempted to secure assignments of all the beneficial interests in the land trust in order to transfer title to NIIP. However, the trustee would not accept the assignments because they lacked a corporate resolution by the assignee, there ...


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