Christensen v. Wick Bldg. Systems, Inc.

• Decision Date: 23 October 1978
• Docket Number: No. 78-71,78-71
• Citation: 21 Ill.Dec. 645,381 N.E.2d 1189,64 Ill.App.3d 908
• Parties: , 21 Ill.Dec. 645 Robert W. CHRISTENSEN, Plaintiff-Appellee, v. WICK BUILDING SYSTEMS, INC., a Wisconsin Corporation, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1189

381 N.E.2d 1189

64 Ill.App.3d 908, 21 Ill.Dec. 645

Robert W. CHRISTENSEN, Plaintiff-Appellee, v. WICK BUILDING SYSTEMS, INC., a Wisconsin Corporation,

Defendant-Appellant.

No. 78-71.

Appellate Court of Illinois, Third District.

Oct. 23, 1978.

Paul E. Root, Root Law Office, Morris, for defendant-appellant.

John V. Hanson, Hanson & Hanson, Morris, for plaintiff-appellee.

STOUDER, Presiding Justice:

Plaintiff, Robert Christensen, commenced this action in the circuit court of Grundy County by filing a four count complaint against defendant, Wick Building Systems, Inc. In count one of the complaint, plaintiff sought recovery of certain commissions alleged to be owed to him for the sale of defendant's homes. Plaintiff filed a motion for judgment on the pleadings as to count one of the complaint which was granted by the court. The judgment order provided, "That there is no just reason to delay enforcement or appeal of this order" and defendant perfected this appeal.

According to the complaint, on July 1, 1974, plaintiff and defendant entered into a contract whereby plaintiff became a franchised dealer for prefabricated dwellings manufactured by the defendant and known as Wick Homes. Plaintiff's compensation for selling defendant's homes was in the form of a commission. Pursuant to paragraph nine of the contract, plaintiff was not entitled to a commission until receipt of the purchase price by defendant. The contract also imposed certain affirmative obligations on plaintiff relating to preparation of the building site for construction of the home, finishing work, and collecting the purchase price. According to paragraph 8, if the purchase price could not be collected from the purchaser, plaintiff became responsible for any deficiency. A copy of the contract was attached to plaintiff's complaint.

Count one of the complaint first alleged the existence of the contract. The count then claimed that plaintiff was owed commissions for the sale of Wick homes and set forth the purchasers last name, the defendant's invoice number and the amount due. The amount claimed under the Clegg invoice was $3,767 and the amount under the Foland invoice was $1,169, or a total of $4,936. Plaintiff alleged that despite demands for payment, defendant had failed to pay plaintiff these commissions.

Defendant filed a timely answer to plaintiff's complaint. In answer to count one defendant admitted the existence of the contract, but denied the allegations of paragraph two of plaintiff's complaint. In paragraph three defendant admitted that plaintiff was owed a commission under the Clegg invoice in the amount of $3,767, but denied it was due and payable until all obligations owed by plaintiff to the defendant were satisfied. The answer denied the remaining allegations of paragraph three, which included the commission plaintiff claimed was due for the Foland sale.

Plaintiff then submitted to defendant interrogatories and a request for admissions and production of documents. Defendant was requested to admit as true that "Defendant presently owes to plaintiff commission earned in the amount of $4936.00." No objections or answers were given to the interrogatories and request for admission within 28 days as is required by Supreme Court Rule 216. (Ill.Rev.Stat.1977, ch. 110A, par. 216.) On November 3, 1977, plaintiff filed his motion for judgment on the pleadings on count one. In support of his motion, plaintiff stated that defendant's answer admitted that $3,767 in commissions was due plaintiff and defendant admitted that it owed plaintiff $4,936 because of defendant's failure to answer or object within 28 days to plaintiff's request for admission. Upon order of court, defendant thereafter answered the interrogatories and produced the requested documents. Defendant also filed an answer to the requested admission set forth above. Defendant admitted that the plaintiff had earned $3,767 and stated that an additional commission of $1,169 would be earned when defendant received payment in full for the sale of the Foland home. Plaintiff filed no motion objecting to the tardiness of defendant's answer to the requested admission.

Defendant was given leave to file a counterclaim. Count one of the counterclaim generally alleged that plaintiff-counter defendant entered into a contract with Gary Foland for the purchase and construction of a Wick home and the contract was accepted by defendant-counter plaintiff. It was then alleged that all construction was completed and the amount of $2,930.50 remained unpaid on the purchase price. Based upon paragraph eight of the franchise agreement, defendant sought recovery of this amount from plaintiff. Count two of the counterclaim also involved the Foland sale. It alleged plaintiff's obligation to have the drywall in the home taped and to inspect the workmanship of the taping prior to authorizing payment by defendant for the work. Count two then generally alleged plaintiff's failure to perform these duties and that defendant was required to make repair to the drywall in the amount of $3,500. Recovery was sought of this amount.

Plaintiff's answer to the counterclaim generally denied the material allegations of the counterclaim and alleged by way of affirmative defense that defendant obstructed and interfered with plaintiff's performance of his obligations of the franchise agreement, that defendant instructed plaintiff to cease all his efforts to perform on his sales contract and to refrain from further contact with the purchaser Gary Foland and that defendant completed all repairs to the Foland residence on its own accord.

On December 2, 1977, the court granted plaintiff's motion for judgment on the pleadings as to count one and entered judgment against defendant for $4,936.

Defendant first challenges the sufficiency of the complaint. Defendant claims that the complaint fails to state a cause of action because it does not allege plaintiff performed all of the conditions imposed on him by the contract (See Ill.Rev.Stat.1977, ch. 110A, par. 133(c)). Defendant filed no objection to the complaint in the trial court. While plaintiff's complaint may be defective for failing to allege plaintiff's performance of the contract or excuse for nonperformance, we believe any objection to such defect was waived when defendant failed to object to the defect in the trial court. Section 42 of the Civil Practice Act (Ill.Rev.Stat.1977, ch. 110, par. 42) in essence provides no pleading is bad in substance if it reasonably informs the opposing party of the nature of the claim and all defects in pleadings, whether in form or substance, are waived if not objected to in the trial court. We believe that count one of plaintiff's complaint reasonably informed defendant of the nature of plaintiff's claim. See First Nat. Bank In DeKalb v. City of Aurora, 71 Ill.2d 1, 15 Ill.Dec. 642, 373 N.E.2d 1326.

Defendant correctly asserts that the failure to state a cause of action may be raised for the first time on appeal, but fails to recognize the distinction between a good cause of action defectively pleaded and a complaint which wholly and absolutely fails to state a cause of action. It is only the latter which is not waived by the failure to object in the trial court. (See Lasko v. Meier, 394 Ill. 71, 67 N.E.2d 162.) We note that typically a...