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A.a. Conte v. Campbell-lowrie-lautermilch

OPINION FILED MARCH 28, 1985.

A.A. CONTE, INC., PLAINTIFF-APPELLANT,

v.

CAMPBELL-LOWRIE-LAUTERMILCH CORPORATION, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. Edwin M. Berman, Judge, presiding.

JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

This appeal arose from a dispute between A.A. Conte, Inc. (Conte), the plaintiff, and Campbell-Lowrie-Lautermilch Corporation (Campbell-Lowrie), the defendant, wherein Conte sought to recover $83,596 which it claimed was owed by Campbell-Lowrie. The trial court granted Campbell-Lowrie's motion for summary judgment, and Conte brought this appeal.

We are asked to consider whether the trial court erred in granting summary judgment to defendant.

We affirm.

The facts are not in dispute. Campbell-Lowrie was the contractor for a construction project in Northlake. In July 1974, Conte and Campbell-Lowrie entered into a contractual agreement whereby Conte would perform certain work as a subcontractor for Campbell-Lowrie at the construction site. Conte performed excavating work at the construction site between July and December 1974. Campbell-Lowrie had other subcontractors besides Conte, and payments were made to the subcontractors on a monthly basis upon the contractors' submission of bills to Campbell-Lowrie.

The construction project was owned by La Salle National Bank, as trustee, and three individuals who were beneficial interest owners. In November 1974, the owners defaulted on payments and the project was terminated. Campbell-Lowrie informed its subcontractors, including Conte, that the owners had defaulted and advised the subcontractors to cease work immediately. Conte was owed a sum of $83,956 for work already performed when the project was terminated.

The owners were later determined to be insolvent. Campbell-Lowrie submitted a bill for $149,714.68 to the owners for work done. That bill included the $83,956 owed to Conte. Campbell-Lowrie was not paid by the owners and in turn made no payment to Conte. Subsequently, Conte instituted a claim for a mechanic's lien against the project for the amount due on its contract with Campbell-Lowrie.

Foreclosure proceedings were instituted against the owners of the project, and Conte sought to execute the mechanic's lien in those proceedings. The judge in the foreclosure proceedings found that Conte was owed $83,956 for work performed under its subcontract with Campbell-Lowrie. The judge recognized Conte's mechanic's lien against the project, but found that the lien was inferior and subordinate to the lien for $610,000 held against the project by Associates Capital Company, Inc. The liens held by Conte and other subcontractors for the project could not be satisfied ahead of that held by Associates Capital. The project was foreclosed and sold early in 1979. Conte unsuccessfully attempted to collect the $83,956 directly from Campbell-Lowrie.

In July 1979, Conte filed suit against Campbell-Lowrie in the circuit court of Cook County seeking to recover the amount in question. Campbell-Lowrie denied indebtedness to Conte and raised an affirmative defense to Conte's claim. The gist of Campbell-Lowrie's affirmative defense was that article 18 of its contract with Conte set forth a condition precedent to payment. The condition was that Campbell-Lowrie must first receive payment from the owners of the project under the general contract before it was obligated to pay its subcontractors. The owners had not paid Campbell-Lowrie; therefore, Conte was not entitled to payment from Campbell-Lowrie.

Both parties moved for summary judgment. Conte sought to have the trial court declare that Campbell-Lowrie was obligated to Conte for $83,956. Campbell-Lowrie cited articles 5 and 18 of its contract with Conte, which state:

"ARTICLE 5: Material invoices submitted before the 25th of the current month will be paid by the 28th of the following month, provided the material so delivered is acceptable, and if payment for invoiced material has been received by Campbell-Lowrie-Lautermilch Corporation under its general contract. Discountable bills will be paid as stipulated in the order.

ARTICLE 18: * * * [I]f the work has been satisfactorily performed and invoice as rendered is approved and if payment for such labor and material so invoiced has been received by Campbell-Lowrie-Lautermilch Corporation under its general contract, the subcontractor will be paid 85% of invoice as approved, less any payments previously made on account for previous periods. No payments made shall be considered as evidence of acceptance of the work either in whole or in part until the work is completed and accepted, whereupon final payment will be made within thirty (30) days of such acceptance upon receipt of all or any bonds, guarantees, etc. required." (Emphasis added.)

Campbell-Lowrie asserted that its payment to Conte was contingent upon its receiving payment from the owners of the project. Based on the contractual language (articles 5 and 18), Campbell-Lowrie had no obligation to pay Conte since it had not been paid by the owners. The parties filed several memoranda of law in support of their respective positions.

On October 17, 1983, the trial court denied Conte's motion for summary judgment and granted ...


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