Economy Fuse & Mfg. Co. v. Raymond Concrete Pile Co.

• Decision Date: 06 May 1940
• Docket Number: No. 7114.,7114.
• Citation: 111 F.2d 875
• Parties: ECONOMY FUSE & MFG. CO. v. RAYMOND CONCRETE PILE CO.
• Court: U.S. Court of Appeals — Seventh Circuit

111 F.2d 875 (1940)

ECONOMY FUSE & MFG. CO. v. RAYMOND CONCRETE PILE CO.

No. 7114.

Circuit Court of Appeals, Seventh Circuit.

May 6, 1940.

William A. Morrow, Walter M. Fowler, and Gardner, Foote, Morrow & Merrick, all of Chicago, Ill. (Robert L. Elliott, Jr., of Chicago, Ill., of counsel), for appellant.

Edward R. Adams, Herbert C. De Young, Amos C. Miller, Robert W. Wales, and William Simon, all of Chicago, Ill., for appellee.

Before SPARKS and MAJOR, Circuit Judges, and LINDLEY, District Judge.

LINDLEY, District Judge.

Plaintiff appeals from a judgment based upon a ruling overruling plaintiff's demurrer to defendant's plea of the Statute of Limitations to each count of the declaration. The pleadings, filed when common law procedure was the rule in Illinois, were, as provided by the Conformity Act, 28 U.S.C.A. § 724, in accord with that practice.

The declaration contained seven counts, paragraphs 1 to 5, inclusive, of each of which are identical and include substantially the averments following. Plaintiff, having decided to erect a building for the housing of its office, machinery and equipment, feared it might be difficult to obtain proper support for the foundation and deemed it advisable to avail itself of expert advice and skill in order that it might surely obtain the desired adequate support. Defendant had, for a long time, been engaged in the business of manufacturing and installing concrete piles for supports for foundations, holding itself out to the public as possessing expert knowledge, skill and experience in such work and as constantly furnishing to its clientele material and workmanship suited to the purpose for which it might be intended.

Plaintiff informed defendant of the character of the proposed building, of the use for which it was intended, of the necessity of excavation and refilling and of the desire to have installed piles that would furnish adequate and proper support. Thereafter defendant submitted a proposal in writing to manufacture and install the piles. Confiding in and relying upon this offer and the knowledge and experience of defendant, plaintiff accepted in writing the proposal, which thereupon became a written contract.

Under this agreement, defendant proposed to furnish "all tools, material and labor for, and install" concrete piles for the "foundation of the proposed building." The writing expressly provided that the concrete should be composed of "one part good Portland Cement; three parts sharp sand and five parts crushed stone or gravel of suitable size, which shall be carefully mixed and placed in the shells." No additional specifications were prescribed except that the piles were to be of certain dimension and length. The work was to be "pushed to completion as speedily as is consistent with good workmanship."

Defendant entered upon the performance of the contract and made, placed and installed 255 piles. Plaintiff relied upon the performance of the work as of such character as to furnish adequate support, paid for it according to the prices stipulated, proceeded to erect the building at a cost of $425,000, and placed therein its equipment and machinery.

The sixth and last paragraph of each count states wherein it is claimed defendant broke its contract and sets forth the damages alleged to have resulted. Thus, in count 1, it is averred that by virtue of the contract, defendant agreed and warranted that it would furnish "sufficient and adequate support for the foundation and building proposed to be erected"; that the piles built were insufficient and inadequate for such purpose and that, as a result, the building sank and settled to the damage of plaintiff.

In count (2) the comparable averment is that by the contract defendant agreed and warranted to plaintiff that the piles "would be reasonably fit and suitable to sustain and support the foundation and building"; that the piles built were unsuitable, unfit and insufficient for the purpose contemplated, whereby plaintiff was greatly damaged.

In count 3 it is averred that by the contract defendant agreed that "it would manufacture, place and install in the ground * * *, for the purposes aforesaid, the piles, in a good and workmanlike manner and would use reasonable skill and care in the manufacture" and installation and warranted that it had "fulfilled its undertaking in that behalf"; that defendant failed to use reasonable skill but manufactured and installed the piles in an unworkmanlike, unskilled manner.

In count 4 the charge is that defendant undertook and agreed that the material would be composed of one part good Portland cement, three parts sharp sand and five parts crushed stone and gravel of suitable size, and that it would be carefully mixed and placed in the shells; and that it utilized improperly mixed materials to the damage of plaintiff.

Count 5 is similar in its averments as to the duties of defendant, charging the use of inferior sand.

Count 6 charges that defendant was bound to mix carefully and place materials in the shells; that it improperly and carelessly mixed and placed the materials in such manner that the piles provided inadequate, insufficient support.

Count 7 avers that defendant by its contract warranted that the piles would have and retain normal and reasonable strength in sustaining power in proportion to the size of such piles when manufactured and installed in a good and workmanlike manner and of the materials specified; that defendant furnished piles that were weak, soft, defective and of less than the normal and reasonable strength of piles of such size and character, so that they were inadequate, insufficient and unfit to sustain the foundation and building.

To this declaration and each count thereof defendant filed a plea of the general issue and a special plea of the Statute of Limitations, in the latter of which it averred that the cause of action set forth in each count had not accrued to plaintiff within five years before commencement of the suit. Demurrer to this plea was overruled.

Thus the question at sharp issue between the parties is whether the causes of action pleaded in the various counts were within the Statute of Limitations of Illinois governing written contracts, wherein the limitation is ten years, or by that governing unwritten contracts, wherein the limitation is five years. Illinois Revised Statutes 1939, chap. 83, Sections 16, 17. Plaintiff contends that all upon which it relies to constitute each cause of action as outlined in each count is expressed in the contract or implied as a matter of law therefrom, whereas defendant's position is that none of plaintiff's causes of action grows out of the contract; that, as pleaded, each rests partly in parol and partly in writing and is, therefore, barred by the five-year Statute of Limitations as an action upon an unwritten contract.

The special plea is one of confession and avoidance. Fish v. Farwell, 160 Ill. 236, 43 N.E. 367; Wiley & Drake v. National Wall Paper Co., 70 Ill.App. 543. Consequently the sufficiency of plaintiff's declaration was not questioned by the plea and we are concerned only with the question of whether the causes of action thus admitted are based upon a written contract or upon an unwritten one.

It is not the law of Illinois that a cause of action upon a written contract is taken out of that class by reliance upon evidence of surrounding circumstances. On the contrary in this jurisdiction it is recognized that in determining whether the written provision of a contract imports a warranty implied by law the court may and must admit such evidence of the surrounding circumstances as will aid the court in arriving at the true meaning of the parties. The proposition in no way violates the parol evidence rule and in nowise militates against characterization of the cause of action as one arising upon a written contract. MacAndrews & Forbes Co. v. Mechanical Mfg. Co., 367 Ill. 288, 11 N. E.2d 382; Druecker v. McLaughlin, 235 Ill. 367, 85 N.E. 647; Geithman v. Eichler, 265 Ill. 579, 107 N.E. 180. Consequently the pleading of extraneous facts by plaintiff, that is, the knowledge of defendant of the purpose for which the work was to be done, did not alter plaintiff's action upon the contract in such way as to place it in a category resting upon a contract partly written and partly oral, for,...