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Installco Inc. v. Whiting Corp.

June 18, 1999

INSTALLCO INCORPORATED, AN ILLINOIS CORPORATION, PLAINTIFF-APPELLANT,
v.
WHITING CORPORATION, A DELAWARE CORPORATION, DEFENDANT-APPELLEE.



The opinion of the court was delivered by: Justice Hartman

Appeal from the Circuit Court of Cook County. Honorable Albert Green, Judge Presiding.

the opinion of the court:

Plaintiff, Installco Incorporated (Installco), appeals from orders granting summary judgment to defendant, Whiting Corporation (Whiting), based upon the court's determination that as a matter of law: (1) Installco was not entitled to recover attorney fees, court costs and exemplary damages pursuant to the Sales Representative Act (820 ILCS 120/0.01 et seq. (West 1994) (Act) (No. 1-97-2601)); and (2) Installco was not entitled to additional compensation for its non-sales work on a value engineering change proposal (VECP), upon the theory of unjust enrichment (No. 1-98-0656). Installco raises as issues on appeal whether the circuit court erred in (1) granting summary judgment in favor of Whiting and against Installco because it was not a sales representative under the Act; and (2) granting summary judgment in favor of Whiting and against Installco, because Installco's non-sales work on the VECP was within the scope of Installco's existing contractual duties.

On August 7, 1995, Installco filed a verified, two count complaint, against Whiting. The following facts emerge from the pleadings. Prior to 1988, Installco was a government subcontractor, supplying machinery packages for moveable bridges, locks and dams. During 1988, Whiting "invited" Installco to assist Whiting in entering the machinery subcontracting business, relating to bridges, locks and dams. On June 1, 1988, Installco and Whiting entered into a formal agreement prepared by Whiting, and signed by Raymond E. Gibson, Whiting's President, and John B. Ehret, Installco's President. Whiting would utilize Installco as a consultant on all bridge, lock and dam projects on an exclusive basis. Installco's "[c]onsulting services [would] consist of *** assisting Whiting *** in the preparation of quotations, selling, manufacturing, and the purchase of O.S.M. as deemed necessary ***."In exchange for Installco's consulting services, Whiting agreed to pay Installco a fee of five percent of the selling price paid on orders received during the term of the agreement, payments to be made as set forth in Schedule A, attached to the June 1, 1988 agreement. Installco would not take orders directly for bridges, locks or dams without obtaining Whiting's written consent, and "[e]ach order consummated utilizing the consulting services of Installco [would] designate Whiting *** as the vendor." Finally, the agreement, which was to include locks #21 and #22 and the Bay City, Michigan bridge, provided that it superseded any previous written or verbal agreements between the parties with respect to the jobs designated in that agreement, as well as all future business, and that the agreement would remain in force until such time as it was terminated by either party. Termination could be initiated by either party with a 60-day written notification of such intent, and all quotations and/or orders in process would be completed, with performance and compensation to be provided as specified in the agreement.

Installco further alleged that a new contract, subsequently entered into by the parties, was prepared by Whiting and signed by Gibson and Ehret on November 20, 1991, and December 11, 1991, respectively. The new agreement modified the original contract by adding the word "engineering" to the list of consulting services Installco would provide Whiting. The payment clause of the original agreement also was modified: for consulting services rendered, Whiting would pay to Installco a fee based on the selling price on orders received during the term of the agreement and that the amount and the timing of the payment of the fee would be based on Schedules A and B, which were attached thereto. Different percentages were to be paid for each separate project. Any on-site work performed by Installco was separately compensable. "Selling price," was defined by the agreement as the amount of the customer's order, exclusive of erection, erection supervision, freight, royalties, canceled orders or returned goods, taxes, escalation, commissions and fees. Also added were the following provisions: Installco could bid on any contract in any state which Whiting had not bid on when Whiting was notified by Installco in writing and in advance of the bid date. Whiting reserved the right to negotiate the selling price and total fee, correspondingly, on any job whenever it decided that competitive pressures demanded it. The agreement was to become effective when signed by both parties. *fn1 Installco was to be paid full fees on orders received under the agreement according to schedules A and B, upon termination by either party.

Installco asserts that it terminated its contract with Whiting in writing, signed by Ehret, and dated February 5, 1994; in that letter, Installco demanded the payment of commissions as provided under contract in Schedule B, and sections 1, 2, and 3 of the Act. Installco alleged that the commissions totaling $31,789 were shown on Exhibit C and that the corresponding shipments had been completed for more than one year. The commission fee agreement set forth in Schedule B, which was attached to Exhibit B, provided that "[a]ll undisputed fees will be paid within one (1) year of final shipment." Installco alleged that despite the fact the commissions shown were due, Whiting tried to deceive Installco into an accord and satisfaction in its November 8, 1994 letter, by refusing to pay the amount shown above unless Installco accepted $20,621.90 in total settlement. Accordingly, Installco asserts that Whiting had breached their agreement. In addition to the unpaid commissions, Installco seeks an award of attorney fees, court costs, and exemplary damages under the Act.

Installco also claims that the contractual agreement between the parties did not require it to make VECPs on subcontracts. Installco succeeded in winning a VECP (subject VECP), resulting in a substantial profit to Whiting, which contributed nothing to the effort. Consequently, Installco also brings an unjust enrichment claim against Whiting for the profits and benefits obtained by Whiting from the subject VECP.

I.

Installco first contends that the circuit court erred in granting summary judgment to Whiting on count I of its complaint, based on the court's determination that, as a matter of law, Installco was not a sales representative pursuant to the Act and, therefore, could not recover attorney fees, court costs and exemplary damages, for breach of contract.

Summary judgment is properly granted where the pleadings, depositions, admissions on file and affidavits show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005 (West 1996); Mobil Oil Corp. v. Maryland Casualty Co., 288 Ill. App. 3d 743, 751, 681 N.E.2d 552 (1997) (Mobil); Maher and Associates, Inc. v. Quality Cabinets, 267 Ill. App. 3d 69, 77, 640 N.E.2d 1000 (1994) (Maher). The movant's right must be clear and free from doubt; the motion must be strictly construed against the movant. Kleinwort Benson North America, Inc. v. Quantum Financial Services, Inc., 285 Ill. App. 3d 201, 208-209, 673 N.E.2d 369 (1996), aff'd, 181 Ill. 2d 214, 692 N.E.2d 269 (1998); Maher, 267 Ill. App. 3d at 77.

A genuine issue of material fact exists when a material provision of a contract contains an ambiguity requiring extrinsic evidence to resolve. Maher, 267 Ill. App. 3d at 77. Whether such ambiguity exists is a question of law for the circuit court to decide; if reasonable persons could draw different inferences from the undisputed facts, summary judgment is inappropriate, and the matter should proceed to trial. Maher, 267 Ill. App. 3d at 77.Since this case is an appeal from orders granting summary judgment without credibility issues, this court's review is de novo. Mobil, 288 Ill. App. 3d at 751; English Company v. Northwest Envirocon, Inc., 278 Ill. App. 3d 406, 410, 663 N.E.2d 448 (1996).In the instant case, the circuit court concluded that Whiting was entitled to summary judgment based on its determination that Installco and Whiting were joint venturers as a matter of law. Installco argues, however, that summary judgment was inappropriate because there exists a triable question of fact as to whether Installco was a sales representative, rather than a joint venturer with Whiting, so that the Act would apply and provide Installco with its protections and benefits. *fn2

Construction of the Act requires the ascertainment of its true meaning and the intent of the legislature. Maher, 267 Ill. App. 3d at 75. The statutory language is generally the best indicator of legislative intent. Maher, 267 Ill. App. 3d at 75. When the language of a statute is clear, it will be given its clearly understood meaning without resort to other construction aids (Maher, 267 Ill. App. 3d at 75); however, where the meaning is unclear, the court may look beyond the statutory language and consider the purpose behind the law and the evils the law was designed to remedy (English Company, 278 Ill. App. 3d at 412).

Installco argues that facts exist in this case which support a finding that it was Whiting's sales representative, based upon the following: (1) the contract itself reveals that Installco was to render consulting services, which included the preparation of quotations to be used in making job bids and selling; (2) it could not take any direct action with respect to accepting bids on Whiting's behalf; (3) Installco was to be paid a fixed percentage of the sales price of the machinery, but only if a sale was made; (4) the record contains the documents of some of the equipment sales Installco made on behalf of Whiting; (5) Ehret, the majority owner and sole employee of Installco, described in his affidavit the nature of Installco's sales efforts on Whiting's behalf; (6) Installco did Whiting's selling from 1988 through January, 1994; (7) Ehret met and socialized with the general contractors, who were potential customers; and (8) Installco bid on behalf of Whiting about 200 times during that six-year period, "achiev[ing] great success for Whiting promotionally or sales-wise" and obtaining for Whiting, which had no prior bridge machinery experience, "national recognition overnight."

Installco argues that the circuit court ignored the foregoing facts and instead relied heavily on a memorandum (subject memorandum) Ehret wrote in 1989, near the inception of the relationship between Installco and Whiting. The subject memorandum, Installco asserts, was written during the course of exploring whether certain United States Corps of Engineer (USCOE) forms had to be marked in a particular fashion with regard to the nature of Installco's work on Whiting projects, and reflected experiences between the two companies at a time when Whiting suddenly was faced with a large volume of machinery business with which it was unfamiliar. Installco urges that the meaning of the subject memorandum language is open to question, and its interpretation is more appropriate for a ...


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