Business Development Services, Inc. v. Field Container Corp., 80-1382

• Decision Date: 22 May 1981
• Docket Number: No. 80-1382,80-1382
• Citation: 52 Ill.Dec. 405,422 N.E.2d 86,96 Ill.App.3d 834
• Parties: , 52 Ill.Dec. 405 BUSINESS DEVELOPMENT SERVICES, INC., an Illinois Corporation, Plaintiff- Appellant, v. FIELD CONTAINER CORPORATION, a corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 86

422 N.E.2d 86

96 Ill.App.3d 834, 52 Ill.Dec. 405

BUSINESS DEVELOPMENT SERVICES, INC., an Illinois Corporation, Plaintiff- Appellant, v. FIELD CONTAINER CORPORATION, a corporation, Defendant-Appellee.

No. 80-1382.

Appellate Court of Illinois, First District, Fifth Division.

May 22, 1981.

[52 Ill.Dec. 407] Ira J. Bornstein, Chicago (Barnett & Beigel, Ltd., Chicago, of counsel), for plaintiff-appellant

Robert Y. Sperling, Howard J. Stein and Katten, Muchin, Zavis, Pearl & Galler, Chicago, for defendant-appellee.

MEJDA, Justice:

This is an appeal from the trial court order which granted defendant's motion to dismiss plaintiff's amended complaint. The issues presented for review are: (1) whether the amended complaint states a cause of action; (2) whether the contractual two-year time limitation is applicable; (3) whether defendant waived the two-year limitation; (4) whether count II states a cause of action for breach of an oral contract; (5) whether plaintiff is entitled to recover under quantum meruit.

The amended complaint contains the following pertinent allegations:

Count I : In June, 1976, plaintiff, a business finder, was employed by defendant to introduce defendant to Folding Cartons, Inc. ("Folding") in order to effectuate defendant's acquisition of Folding. On August 19, 1976, this employment agreement was memorialized in writing. Pursuant to this agreement, plaintiff introduced defendant to Folding and negotiations between the latter two parties proceeded through December, 1976, when negotiations ended. Plaintiff maintained continuous contact with Folding and, in December, 1977, was informed that Folding was withdrawing from the market until an undetermined future date.

During January and February, 1978, plaintiff continued its efforts on behalf of defendant and determined that due to Folding's financial position, negotiations for the acquisition would be improvident prior to the fall of 1978.

On April 4, 1978, a meeting was had between plaintiff and defendant, at which time plaintiff counselled a delay of approximately six months before defendant should recommence negotiations with Folding. At that time defendant requested and directed that plaintiff continue its performance of procuring, on defendant's behalf, the acquisition of Folding regardless of the time limitation in the agreement. Defendant therefore waived the two-year limitation. Pursuant to defendant's requests, direction, acts and conduct, plaintiff was induced to so continue.

Plaintiff maintained contact with Folding on defendant's behalf from April through October, 1978. On October 19, 1978, negotiations for the acquisition of Folding by defendant were recommenced and continued through December, 1978. On December 14, 1978, an agreement was executed for defendant's acquisition of Folding, which was closed on February 1, 1979, at a cost of $1,600,000 plus inventory and realty.

Count II : Plaintiff, in the alternative, alleges the initial agreement and a new verbal agreement on April 4, 1978. Defendant therein agreed to pay plaintiff the same commission set forth in the prior written agreement in consideration for plaintiff's using its best efforts to effectuate and procure the acquisition of Folding by defendant. Plaintiff also alleged that it fully rendered all services in conformity with the oral agreement of April 4, 1978.

Count III : Plaintiff alleges that between June, 1976, and October, 1978, it performed services at defendant's specific instance, request and direction to effect the acquisition of Folding by defendant. These services included, but were not limited to, the introduction of defendant to Folding, maintaining continuous negotiations and contact with defendant and Folding, and counselling defendant as to the proper time to approach Folding. Plaintiff claims that the reasonable value of its services is $74,000 which defendant has refused to pay.

In each count plaintiff prays judgment against defendant for $74,000, plus such further amount as may be determined to be due as a result of the purchase and sale, plus interest and costs.

Defendant filed a motion to dismiss the amended complaint as insufficient at law pursuant to sections 45 and 48 of the Illinois Civil Practice Act. (Ill.Rev.Stat.1977, ch. 110, pars. 45 and 48.) Plaintiff filed a response. The court granted the motion by an order which stated that plaintiff has not stated and cannot state any set of facts that would constitute a cause of action. This appeal followed.

OPINION

I.

A motion to dismiss admits all facts well pleaded and the reasonable inferences which may be drawn therefrom are taken as true for the purposes of the motion. (Horwath v. Parker (1979), 72 Ill.App.2d 128, 28 Ill.Dec. 90, 390 N.E.2d 72; Giers v. Anten (1978), 68 Ill.App.3d 535, 24 Ill.Dec. 878, 386 N.E.2d 82.) The attached exhibits are an integral part of the complaint and must be so considered. (Fowley v. Braden (1954), 4 Ill.2d 355, 122 N.E.2d 559.) A reviewing court should interpret the facts alleged in the complaint in the light most favorable to the plaintiffs. (Farns Associates, Inc. v. Sternback (1979), 77 Ill.App.3d 249, 32 Ill.Dec. 722, 395 N.E.2d 1103; Cipolla v. Bloom Township High School Dist. No. 206 (1979), 69 Ill.App.3d 434, 26 Ill.Dec. 407, 388 N.E.2d 31.) Additionally, the complaint should not be dismissed unless the pleadings disclose that no set of facts could be proved that will entitle the plaintiff to relief. (Agee v. First National Bank of Maywood (1979), 68 Ill.App.3d 794, 25 Ill.Dec. 435, 386 N.E.2d 899; Patton v. T. O. F. C., Inc. (1979), 79 Ill.App.3d 94, 34 Ill.Dec. 638, 398 N.E.2d 313.) In sum, the pleadings are to be liberally construed with the view of doing substantial justice between the parties. Ill.Rev.Stat.1977, ch. 110, par. 33(3) II.

Plaintiff first contends that the two-year time limitation set forth in paragraph 3 of the parties' agreement is inapplicable to the present controversy. That paragraph provides:

"3. In the event BDS introduces Folding Cartons, Inc. to Principal and Principal concludes an agreement relating to purchase or exchange of a business interest or in the event a new or different business relationship is concluded involving Principal (or anyone who is an owner of Principal on the date of such introduction) and such prospect at any time within a period of 2 years from the date hereof, BDS shall be paid the compensation provided in paragraph 4 herein."

Plaintiff argues that applying the "last antecedent clause rule" of contract construction which provides that a qualifying phrase is confined to the last antecedent (Storybook Homes, Inc. v. Carlson (1974), 19 Ill.App.3d 579, 312 N.E.2d 27), it is clear that the two-year limitation applies only to the clause immediately preceding it (namely, in the event a new and different relationship is concluded involving the Principal * * * and such prospect) and not the first clause. In addition, plaintiff maintains that the rule of grammatical construction should be followed. (Dick v. Goldberg (1920), 295 Ill. 86, 128 N.E. 723.) It argues that the two subordinate clauses in paragraph 3 of their agreement are adverbial clauses, modifying the verb "paid" in the main clause and that each of the subordinate clauses can be joined with the main clause to form a sentence, to-wit:

"In the event BDS introduces Folding Cartons, Inc. to Principal and Principal concludes an agreement relating to purchase or exchange of a business interest, BDS shall be paid the compensation provided in paragraph 4 herein."

"In the event a new or different business relationship is concluded involving Principal (or anyone who is an owner of Principal on the date of such introduction) and such prospect at any time within a period of 2 years from the date hereof, BDS shall be paid the compensation provided in paragraph 4 herein."

Plaintiff asserts that the foregoing sentences illustrate that the time limitation was applicable only in the event defendant concluded a new or different business relationship and that since defendant purchased Folding only the former sentence is relevant to the present litigation.

Defendant submits that since this theory was not advanced at the trial level, it cannot be raised on appeal. Nevertheless, defendant maintains that the clause "at any time within a period of 2 years from the date hereof," modified both clauses. It argues that plaintiff presents no "explanation why the parties would have intended a distinction between the time limitation of both clauses and that plaintiff's construction would permit plaintiff to be paid a commission at any time in the future, no matter how remote, so long as an agreement relating to purchase or exchange" was concluded between defendant and Folding. Plaintiff responds that the applicability of the time limitation involves a question of law and that since the cause was decided on its pleadings and because additional testimony would not alter the situation, the appellate court may properly consider this issue.

While it is generally true that an appellate court should not consider different theories or new questions if proof might have been offered to refute or overcome them had they been presented at trial (Wright v. County of Winnebago (1979), 73 Ill.App.3d 337, 29 Ill.Dec. 347, 391 N.E.2d 772; see also Greater Chicago Indoor Tennis Clubs, Inc. v. Village of Willowbrook (1976), 63 Ill.2d 400, 349 N.E.2d 3), in the instant case no evidence was taken and the cause was decided upon the pleadings. An identical situation was presented in People ex rel. Sterba v. Blaser (1975), 33 Ill.App.3d 1, 337 N.E.2d 410. There the plaintiff filed a mandamus action seeking reinstatement of his position with the Illinois Environmental Protection Agency. Defendant for the first time on appeal questions whether mandamus was a proper legal remedy. That court noted that "(I)n the case before us, no evidence was taken and the cause was decided...