Baker-Wendell, Inc. v. Edward M. Cohon & Associates, Ltd.

• Decision Date: 29 September 1981
• Docket Number: BAKER-WENDEL,No. 80-2284,INC,80-2284
• Citation: 56 Ill.Dec. 237,427 N.E.2d 317,100 Ill.App.3d 924
• Court: United States Appellate Court of Illinois
• Parties: , 56 Ill.Dec. 237 , a Maryland Corporation, Plaintiff-Appellant, v. EDWARD M. COHON & ASSOCIATES, LTD., an Illinois Corporation, Defendant- Appellee.

Page 317

427 N.E.2d 317

100 Ill.App.3d 924, 56 Ill.Dec. 237

BAKER-WENDELL, INC., a Maryland Corporation, Plaintiff-Appellant, v. EDWARD M. COHON & ASSOCIATES, LTD., an Illinois Corporation Defendant- Appellee.

No. 80-2284.

Appellate Court of Illinois, First District, Second Division.

Sept. 29, 1981.

Thomas M. Joyce, Ltd., Chicago, for plaintiff-appellant.

Much, Shelist, Freed, Denenberg, Ament & Eiger, P. C., Chicago, for defendant-appellee.

HARTMAN, Presiding Justice:

Plaintiff Baker-Wendell, Inc., professional architects, sought to recover from defendant Edward M. Cohon & Associates, Ltd., ostensibly a partner in the Woodlawn Commons Partnership, owner of Woodlawn Commons, Fairfax County, Virginia, fees and expenses for professional architectural services allegedly rendered to defendant in connection with a Federal Housing Authority ("FHA") building project that was never begun. Plaintiff appeals from an order which granted defendant's motion for judgment on the pleadings and raises the issue of whether there are material issues of fact set forth by the pleadings precluding the entry of such judgment. For the following reasons, we affirm.

On October 7, 1977, plaintiff filed a verified complaint against defendant alleging that on May 12, 1972, plaintiff entered into an agreement in writing with defendant in which plaintiff agreed to render architectural services as set forth in Exhibit A of the complaint. Exhibit A was a letter from plaintiff addressed to Edward M. Cohon of defendant firm, regarding the proposed project, and contained plaintiff's proposal to perform the following services: plaintiff will act as supervising architect as per FHA requirements and provide liaison between FHA and defendant during the design stage; as agent for defendant, plaintiff will assist in obtaining permits, plan approvals, sewer rights, etc., as required, all permit fees and charges to be borne by the sponsor; in consideration for the above, plaintiff is to receive the fee as allowed by FHA for supervising architect; and, the cost of long distance calls and travel are to be borne by defendant. The letter was dated May 1, 1972, and was accepted May 12, 1972.

Plaintiff's complaint further alleges that in reliance on the foregoing agreement, it performed "a variety of professional services" for defendant between May 12, 1972 and March 31, 1973, expending time and effort having a value of $4,137, as set forth in Exhibit B of the complaint. Exhibit B was a letter from M. W. Wendell of plaintiff firm to defendant regarding the Woodlawn Commons project dated January 8, 1974, which purported to be an itemized statement of money due for professional services: "principals time from Apr. 1972 thru Mar. 1973 98 hrs. $35.00/hr.," plus expenses, prints, postage rendering and "Keeler & Assoc.", totalling $4,137.00. Plaintiff demanded payment of said sum and sent defendant a statement of account, but defendant failed to pay said indebtedness. Plaintiff demanded judgment for $4,137, plus interest.

Defendant filed a motion to dismiss the complaint on December 1, 1977, alleging that: the complaint did not state the amount of the fee allowed by FHA; plaintiff performed no supervisory services; no fees were in fact allowed by FHA or paid by the owner; and, plaintiff did not supervise construction of the project since the project was never constructed. On March 8, 1978, the court granted defendant's motion and gave plaintiff leave to amend the complaint.

On March 27, 1978, plaintiff filed an amended verified complaint alleging that: plaintiff performed professional services at defendant's request from April, 1972 through March, 1973, such as reproducing blueprints, proofreading and studying blueprints, engineer site work, land surveys and soil tests; defendant had represented to plaintiff that it intended to build an apartment project and the services requested were in connection therewith; defendant had orally agreed on April 1, 1972, via a telephone conversation between representatives of plaintiff and defendant respectively, that defendant would recompense plaintiff for services whether or not the project was built; the project was abandoned by defendant before construction began; plaintiff sent defendant a statement in January, 1974 of charges for services performed as of that date, a copy of which was attached as Exhibit A; defendant had already paid for a portion of services rendered prior to the submission of the statement; and there is presently past due and owing from defendant to plaintiff for said professional services, and upon an account stated, $4,137, which defendant had refused to pay. No reference was made in the amended complaint to the letter agreement identified as Exhibit A in the initial complaint, nor was a claim made for services as supervising architect. Exhibit B of the original complaint, comprising the statement of charges, was attached to the amended complaint as Exhibit A.

In its answer, defendant denied the alleged oral agreement between the parties and denied owing plaintiff money for services rendered on an account stated. As an affirmative defense defendant claimed that plaintiff's May 1, 1972 letter of proposal, accepted by defendant, formerly attached as Exhibit A to plaintiff's original complaint, provided that plaintiff shall receive as compensation for its services a sum as allowed by FHA and asserted that no such sum had been allowed. Under the terms of its own agreement, defendant charged, plaintiff was not entitled to any payment for its services. Plaintiff's letter was made Exhibit A of the affirmative defense. Plaintiff did not file a reply to defendant's affirmative defense.

On July 16, 1980, defendant moved for judgment on the pleadings on the grounds that plaintiff's claim for an account stated was without merit since defendant did not agree or acquiesce to said account stated and, the failure of plaintiff to reply to the allegations of defendant's affirmative defense constituted an admission of the truth of "new matter", i.e., the fact of an express contract in effect between the parties, raised therein.

Plaintiff filed a motion to dismiss defendant's motion for judgment on the pleadings and argued that: no new matter was presented in defendant's answer; the "express contract" alluded to by defendant raised issues of fact, and moreover, has been superseded by a later instrument, attached to plaintiff's motion as Exhibit A; the sums demanded by plaintiff were payment for services other than those contemplated in either instrument; and, assuming arguendo the existence of an express contract, plaintiff could still recover on the basis of quantum meruit.

The court granted defendant's motion for judgment on the pleadings on July 16, 1980, from which this appeal proceeds.

Defendant was authorized to move for judgment on the pleadings under section 45(5) of the Civil Practice Act (Ill.Rev.Stat.1979, ch. 110, par. 45(5)). A motion for judgment on the pleadings: requires an examination of the pleadings to determine the existence or absence of an issue of fact, or whether the controversy can be resolved solely as a matter of law, or not; admits all well pleaded facts set forth in the respondent's pleadings; draws all fair inferences from the respondent's pleadings; and contemplates that the moving party is entitled to judgment as a matter of law. See, e.g., Quaintance Associates, Inc. v. PLM, Inc. (1981), 95 Ill.App.3d 818, 821, 51 Ill.Dec. 573, 420 N.E.2d 567.

In the present case, the May 1972 letter agreement, drafted by plaintiff and signed by defendant, was made part of plaintiff's initial verified complaint as Exhibit A, and was subsequently raised as an affirmative defense in defendant's answer to plaintiff's amended verified complaint. An allegation in paragraph 2 of the initial complaint asserts that "Between 12 May 1972 and 31 March 1973, the Plaintiff, in reliance on this agreement, performed a variety of proffessional (sic) services for the Defendant and thereby expending (sic) considerable time and effort thereon to the amount and value of $4137.00 as set forth more fully in Plaintiff's Exhibit 'B' attached hereto." Under section 36 of the Civil Practice Act (Ill.Rev.Stat.1979 ch. 110, par. 36), Exhibits A and B, the contract and statement of charges attached to the complaint, became a part of that pleading for all purposes. Panorama of Homes, Inc. v. Catholic Foreign Mission Society, Inc. (1980), 84 Ill.App.3d 142, 145, ...