Bulley & Andrews, Inc. v. Symons Corp.
| Decision Date | 23 January 1975 |
| Docket Number | No. 59523,59523 |
| Citation | 25 Ill.App.3d 696,323 N.E.2d 806 |
| Court | United States Appellate Court of Illinois |
| Parties | BULLEY & ANDREWS, INC., and Illinois Corporation, Plaintiff- Appellant, Cross-Appellee, v. SYMONS CORPORATION, a corporation, Defendant-Appellee, Cross-Appellant. |
Alvin E. Domash, Charles A. Adamek and Hugh C. Griffin, Lord, Bissell & Brook, Chicago, for Bulley & Andrews, Inc.
John F. McClure and David M. Meister, Arnstein, Gluck, Weitzenfeld & Minow, Chicago, for Symons Corp.
Plaintiff, Bulley & Andrews, Inc., a general contractor, brought this action against defendant, Symons Corporation, to recover damages for contract extras, enforcement of its mechanic's lien, and damages for defendant's fraudulent misrepresentation. The circuit court of Cook County declared a mechanic's lien and entered judgment in favor of plaintiff for some, but not all, of its claimed extras. Also, plaintiff's fraudulent misrepresentation count was dismissed. On appeal, plaintiff alleges that the trial court erred by entering judgment in favor of defendant on plaintiff's claim for extras resulting from owner ordered work, and on plaintiff's fraudulent misrepresentation count. Defendant cross appeals, alleging error in the judgment and mechanic's lien entered against it.
We affirm.
The record reveals that the defendant, Symons Corporation, was in the business of designing and manufacturing concrete forming equipment. On August 8, 1968, Symons contracted with Bulley & Andrews, Inc., a general contractor, for Bulley & Andrews to build an office and factory addition which provided for vast amounts of architectural concrete work to be done. The specifications incorporated into the contract stated that all forming equipment 'will be furnished by Symons Manufacturing Company to the contractor from his standard catalog items, a copy of which is attached to this specification.' By way of explanation, forming equipment consists of those items which may be assembled together to form or create a mold into which wet concrete may be poured. This case is concerned with two particular types of forming equipment, form tie rods and rustication strips. The form rod is a metal rod inserted through holes in both forms and secured on the outside of each form so as to hold the forms together and give the resulting concrete a uniform thickness. The concrete is poured over the ties, allowed to set, and when the forms are removed the protruding ends of the ties are snapped off. The rustication strip is a piece of metal attached to the inside of the form to create a design on the completed concrete wall.
Bulley & Andrews began work, and when it was ready to begin putting together the forms, its field superintendent, Richard Braun, asked Symons' supervisor for the forming equipment to be used. Symons provided the forming equipment, and therein began the basis for this litigation. Bulley & Andrews' position was that it thought the contract called for the use of the standard looped tie rods, a type of tie rod with loops at each end so the tie may be inserted through the forms and locked in place by simply slipping a wedge bolt into each loop. Accordingly, Bulley & Andrews' personnel testified at trial that they prepared the contractor's bid based upon the use of the easy-to-use looped ties Bulley & Andrews had been purchasing from Symons for the past twenty years. The tie rods supplied, however, were not the standard looped tie rods; rather, Symons supplied threaded tie rods. Threaded tie rods serve the same function as the looped tie rods, but instead of having loops on both ends, one end of the rod is threaded to accept a securing nut. The threaded tie rod is pictured in Symons' catalog as being appropriate for special uses, and the Symons' supervisor explained to Braun that the threaded tie was to be used to enhance the final appearance of the concrete walls by reducing grout leakage, Also, Symons furnished a slightly different type of rustication strip than was pictured in its catalog.
Braun accepted the tendered threaded ties and the different rustication strips, and Bulley & Andrews began the forming. Braun neglected, however, to inform his office what type of forming equipment was received. The work took considerably longer to complete than was originally expected. Representatives from both Bulley & Andrews and Symons were at the site regularly to observe the progress, but there is no evidence in the record to indicate that Bulley & Andrews notified Symons either orally or in writing that it was experiencing difficulties and additional costs due to the use of the threaded tie rods and different rustication strips. Nine months after substantially all the forming was completed, Bulley & Andrews figured out that the additional expenses incurred in forming were due to the use of the threaded tie rod and the different rustication strip. Symons was then notified of a claim for extras for this work, but Symons refused to pay because it was not notified of the claim earlier. Also, Bulley & Andrews presented Symons with claims for extra work performed in another part of the job, the yard storage area, and for a delay in the work occasioned by Symons' architect. Symons refused to recognize these claims, too. Bulley & Andrews filed the instant lawsuit.
The case was heard at a bench trial, and the trial court made an express finding that the plaintiff incurred substantial expenses by the use of the different forming equipment, but that plaintiff could not recover the additional expenses from such work because the claim was not submitted until after the work was completed. Accordingly, judgment was entered for defendant on plaintiff's claim for extras resulting from the use of the threaded tie rod and different rustication strip. On the fraud count, the court entered judgment for defendant. As to plaintiff's claims for extras resulting from the work performed in the yard storage area and for the delay occasioned by defendant's architect, the trial court entered judgment for plaintiff and declared a mechanic's lien. Plaintiff appeals from the judgments entered in favor of the defendant. Defendant cross appeals from the judgment and mechanic's lien entered against it.
On appeal, plaintiff contends that the trial court erred by refusing to allow compensation for the extra work necessitated by the defendant's modification of the forming equipment. Specifically, plaintiff alleges that such compensation was recoverable as extras under the contract, and also as damages for defendant's fraudulent misrepresentation.
For a contractor to recover additional compensation from an owner for extra work, the contractor must prove the essential elements of his case as set forth in Watson Lumber Co. v. Guennewig (1967) 79 Ill.App.2d 377, 226 N.E.2d 270. The contractor must establish that (a) the work was outside the scope of his contract promises, (b) the extra work items were ordered by the owner, (c) the owner agreed to pay extra, either by his words or conduct, (d) the extras were not furnished by the contractor as his voluntary act, and (e) the extra items were not rendered necessary by any fault of the contractor.
The parties differ as to whether the work in question was outside the scope of the contract. The contract stated that:
'All * * * form ties, form hardware, steel adjustable shores and metal rustication strips will be furnished by Symons Manufacturing Company to the contractor from his standard catalog items, a copy of which is attached to this specification.'
As for the ties, the catalog pictured both the standard loop tie rod and the threaded tie rod that was actually furnished. Plaintiff alleges that it thought the work was to be performed with the standard loop tie rod, the only type of tie rod it had used for constructing such walls in its many years of using Symons' forming equipment. Defendant claims that the contract called for the threaded tie rod.
A contract is ambiguous when it is reasonably susceptible to different constructions. (Village of North Riverside v. Brookfield-North Riverside Water Commission (1973) 15 Ill.App.3d 752, 305 N.E.2d 221.) The instant contract is ambiguous inasmuch as it is unclear as to which type of tie rod would be furnished by defendant. An ambiguous contract will be construed according to the intent of the parties, and the parties' actions under the ambiguous contract are of great aid in determining what was intended. (Svenson v. American National Bank & Trust Co. (1967) 87 Ill.App.2d 181, 186, 231 N.E.2d 103, 106.) Although there may have been an ambiguity in the contract as to the specified type of form tie rods, any doubt as to the type of equipment to be used on the job was dispelled when Symons' supervisor supplied Bulley & Andrews' field superintendent with the threaded tie rods to be used. At that time, plaintiff knew what was intended by defendant under the contract, but plaintiff failed to protest, negotiate, comment, or otherwise call to defendant's attention any doubts it may have had as to whether the contract called for the use of threaded form tie rods. We feel the ambiguity was resolved by plaintiff's actions, and the work resulting from the use of the threaded tie rods was within the scope of the contract.
As to the rustication strips, the trial court expressly found:
'The rustication strips furnished to the plaintiff by the defendant was not pictured in the defendant's catalogue, which formed a part of the agreement of the parties, the specific rustication strip pictured therein appearing to have a slot as opposed to a round hole.'
Although the use of the rustication strip as supplied may not have been part of the original contract because the rustication strip was not included in defendant's standard catalog, we feel the contract was modified to included the use of the different type of rustication strip. The contract provided that...
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