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Decatur Housing v. Christy-foltz

OPINION FILED SEPTEMBER 23, 1983.

DECATUR HOUSING AUTHORITY, FOR THE USE AND BENEFIT OF HARLAN E. MOORE AND COMPANY, INC., PLAINTIFF-APPELLANT,

v.

CHRISTY-FOLTZ, INC., ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Macon County; the Hon. James A. Hendrian, Judge, presiding.

JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

The plaintiff brought this action pursuant to "An Act in relation to bonds of contractors entering into contracts for public construction" (the Act) (Ill. Rev. Stat. 1981, ch. 29, pars. 15, 16), demanding relief from Christy-Foltz, Inc., as principal and contractor, and St. Paul Fire & Marine Insurance Company, as surety upon a performance and payment bond. Upon defendants' motions, Judge Hendrian dismissed the cause of action with prejudice after finding that the plaintiff failed to allege the defendants' failure to perform the contract with Decatur Housing Authority (Authority) or under the terms of the payment and performance bond and, further, was estopped from doing so by the prior judicial determination and dismissal, with prejudice, pursuant to stipulation in cause No. 82-LM-413, entitled Harlan E. Moore & Company, Inc. v. Christy-Foltz, Inc. and Floors, Inc. Plaintiff appeals the judgment of the circuit of Macon County. We reverse.

Moore has alleged that defendant Christy-Foltz, Inc., as contractor, entered into a contract with the Authority for construction on an Authority project. Christy-Foltz, Inc., subcontracted a portion of the work to Floors, Inc. Between February 19, 1982, and March 16, 1982, Moore supplied Floors, Inc., various items of flooring, adhesive, and mouldings which were incorporated into the project. The sum of $6,690.66 remained due to Moore for these materials. On May 7, 1982, Moore filed notices making claim against the bond under the Act and claiming a lien pursuant to section 23 of the Mechanics' Liens Act (Ill. Rev. Stat. 1981, ch. 82, par. 23), notifying the Authority, Floors, Inc., and Christy-Foltz, Inc.

On August 4, 1982, Moore filed a two-count complaint in cause No. 82-LM-413, a mechanic's lien action. Count II of the complaint was directed against Christy-Foltz, Inc., and Floors, Inc. On August 13, 1982, Christy-Foltz, Inc., answered count II of the complaint, affirmatively stating that no funds remained due to Floors, Inc. Christy-Foltz, Inc., also raised the affirmative defense of satisfaction of the debt:

"[M]oneys due the Defendant, FLOORS, INC., and/or the Plaintiff, HARLAN E. MOORE AND CO., INC., have been paid in full, as evidenced by a check made to the order of HARLAN E. MOORE AND CO., and FLOORS, INC., in the sum of $18,123.00 and endorsed by and received in full satisfaction of the above claim. Check #7004 is attached hereto and marked as Exhibit A and made a part of this answer."

A copy of the front of the check, dated February 18, 1982, is in the record; no endorsements appear.

On October 26, 1982, the complaint in this cause was filed, alleging the existence of the contract between the Authority and Christy-Foltz, Inc.; the contract between Christy-Foltz, Inc., and Floors, Inc.; the purchases by Floors, Inc., from Moore between February 19, 1982, and March 16, 1982; incorporation of the materials into the building; the debt remaining for the materials; and the existence of the performance and payment bond.

On November 9, 1982, Moore entered into the following stipulation with Christy-Foltz, Inc., in the mechanic's lien action:

"1. That as of Plaintiff's filing of the Complaint, no funds remained due from Defendant, Christy-Foltz, Inc. to Defendant, Floors, Inc., sufficient to pay Plaintiff's claim.

2. That Count II of Plaintiff's Complaint may be dismissed with prejudice and Defendant, Christy-Foltz, Inc., awarded its costs of suit."

Judge Diamond then entered the following order in that case:

"This matter coming on to be heard upon the Stipulation of Plaintiff, Harlan E. Moore and Company, Inc., and Defendant, Christy-Foltz, Inc. and the Court being advised in the premises:

NOW THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that Count II of Plaintiff's Complaint be and hereby is ordered dismissed with prejudice and Defendant, Christy-Foltz, Inc., is awarded its costs of suit."

On November 18, 1982, defendant Christy-Foltz, Inc., filed a motion to dismiss this case with prejudice, stating that the cause was barred by the dismissal with prejudice of the mechanic's lien action, which voluntary dismissal constituted an adjudication on the merits. On November 23, 1982, defendant St. Paul Fire & Marine Insurance Company filed a motion to dismiss or in the alternative to make more definite and certain, attacking the sufficiency of ...


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