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10/26/87 Grand Western Currency v. A:M Sunrise Construction

October 26, 1987

GRAND WESTERN CURRENCY EXCHANGE, INC., PLAINTIFF AND COUNTERDEFENDANT-APPELLEE

v.

A:M SUNRISE CONSTRUCTION COMPANY, DEFENDANT AND COUNTERPLAINTIFF AND APPELLANT AND THIRD-PARTY, PLAINTIFF AND COUNTERDEFENDANT-APPELLEE (GEMCO



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

Wholesale Roofing, Inc., Third-Party, Defendant and

Counterplaintiff-Appellant;

Phoenix Roofing

Company, Inc.,

Third-Party, Defendant)

No. 85-3432

516 N.E.2d 486, 163 Ill. App. 3d 51, 114 Ill. Dec. 331 1987.IL.1586

Appeal from the Circuit Court of Cook County; the Hon. Fred W. Reither, Judge, presiding.

APPELLATE Judges:

JUSTICE CAMPBELL delivered the opinion of the court. QUINLAN, P.J., and BUCKLEY, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CAMPBELL

This appeal arises out of a complaint filed on November 25, 1981, by plaintiff, Grand Western Currency Exchange, Inc. (Grand Western), against defendant, A:M Sunrise Construction Company , and out of a third-party complaint and counterclaim filed on October 27, 1983, by A:M against Gemco Wholesale Roofing, Inc. (Gemco), Phoenix Roofing Company, Inc. (Phoenix), and Grand Western. In the original complaint, Grand Western alleged that it was a holder in due course and sought judgment against A:M for $3,570, the amount of a check made payable to Phoenix by A:M, endorsed by Robert Durschlag as president of Phoenix, and cashed by Grand Western on October 29, 1981 (the $3,570 check). On November 2, 1981, due to a stop payment order which had been issued by A:M earlier that day, *fn1 the drawee bank refused payment on the $3,570 check.

In its answer and affirmative defense to Grand Western's complaint, A:M denied that Grand Western was a holder in due course, on the grounds that: (1) the endorsement on the $3,570 check was a forgery because Robert Durschlag had not been the president of Phoenix at the time he endorsed and cashed the $3,570 check; and (2) Durschlag had had no authority to cash checks made payable to Phoenix.

The third-party complaint and counterclaim filed by A:M on October 27, 1983, sought a declaratory judgment as to the rights of Gemco, Phoenix and Grand Western to the $3,570 sum. In its complaint, A:M alleged that after it had issued the $3,570 check to Phoenix, it had discovered defects in the materials and labor furnished by Phoenix which required A:M to pay an additional $1,053 to another roofing company to correct. In its prayer for relief, A:M requested that in the event the court finds that Grand Western is entitled to the $3,570, the court also find that A:M is not liable to either Gemco or to Phoenix for the sum, and that the court enter a judgment in favor of A:M and against Phoenix and Gemco in the amount of $1,053. In the alternative, A:M requested that in the event the court determines that Grand Western is not a holder in due course: (1) the court declare that the assignment to Gemco from Phoenix is not binding on A:M and that A:M is entitled to retain the sum of $3,570; *fn2 or (2) if the court determines that Gemco's assignment is valid as to the sum paid by A:M, that A:M be allowed to retain $1,053 of the $3,570 as a set-off for costs incurred to correct and repair the defects in the work performed by Phoenix. *fn3 ...


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