Duncan v. Cannon, 1-88-3007

• Decision Date: 24 September 1990
• Docket Number: No. 1-88-3007,1-88-3007
• Citation: 204 Ill.App.3d 160,561 N.E.2d 1147,149 Ill.Dec. 451
• Parties: , 149 Ill.Dec. 451 Robert DUNCAN, individually and Robert Duncan, d/b/a Chicago Do-All Custom Home Remodeling, Plaintiff and Counter-defendant-Appellee, v. Lauretta CANNON, Defendant and Counter-plaintiff-Appellant.
• Court: United States Appellate Court of Illinois

Page 1147

561 N.E.2d 1147

204 Ill.App.3d 160, 149 Ill.Dec. 451

Robert DUNCAN, individually and Robert Duncan, d/b/a Chicago Do-All Custom Home Remodeling, Plaintiff and Counter-defendant-Appellee, v. Lauretta CANNON, Defendant and Counter-plaintiff-Appellant.

No. 1-88-3007.

Appellate Court of Illinois First District, First Division.

Sept. 24, 1990.

Benjamin C. Duster, Chicago, for defendant and counter-plaintiff-appellant.

Joel A. Brodsky, Chicago, for plaintiff and counter-defendant-appellee.

Justice MANNING delivered the opinion of the court:

Defendant and counterplaintiff, Lauretta Cannon, ("Defendant") appeals from the judgment of the circuit court in favor of plaintiff and counterdefendant ("Plaintiff") in the amount of $9,600 which represents the unpaid contract price of $1,900 for work performed and $7,700 for "extra" work. Defendant raises three issues on appeal: (1) whether plaintiff was entitled to additional payment for alleged extra work; (2) whether plaintiff's failure to file plans pursuant to the Chicago Building Code ("Ordinance") precludes him from recovering for extra work; and (3) whether the circuit court erred in denying defendant's request for a continuance.

The record reveals that defendant owns a three-flat apartment building in Chicago. In March 1986 defendant entered into a contract with plaintiff to modify the single boiler in the building, which heated all three apartments, by cutting it down to heat only the first floor. The original radiators were to remain on the first floor. Plaintiff was to install a new steam boiler to heat the third floor with the original radiators remaining, and a new hot water boiler to heat the second floor which would be connected to new base board radiators. Pursuant to the contract, all three boilers were to be connected to separate gas meters. The contract price was listed as $5,900 which included all labor and materials.

Shortly thereafter, the parties entered into a second contract which modified their original agreement and stated that:

"Building is a 3-flat building. Boiler is now heating the entire building. Present boiler will be cut down and only used for 1st floor and present radiators. Other 2 floors will be heated with 260,000 BTU boilers steam with lo-cut offs and automatic water feeders. Use present radiators and hook up all three boilers to separate gas meters. 3 gas meter connections. Price includes all labor and material and work to be done in a workmanlike manner."

The contract amount was listed as $7,000, "one half 1/2 down payment on delivery-balance to be paid on completion."

After the work was completed, plaintiff brought this cause of action. Defendant asserted a number of affirmative defenses and filed a counterclaim alleging that plaintiff had performed faulty work.

On August 29, 1988, the case was set final for trial. However, on that date defense counsel presented an oral motion for a continuance on the ground that defendant's expert witness was suddenly and unexpectedly unavailable. The trial court denied defendant's motion and proceeded with trial. Following the trial, the court entered judgment on behalf of plaintiff on counts I and II of his complaint and judgment for the defendant on her counterclaim in the amount of $450.

We first address defendant's argument that because the work in question was required by the original contract it could not be considered as extra work. In order for a contractor to recover additional payment from an owner for extra work, he must establish by clear and convincing evidence each of the essential elements in his case. He must establish that: (1) the work was outside the scope of the original contract; (2) the extra items were ordered at the direction of the owner; (3) the owner agreed either expressly or impliedly to pay extra; (4) the extra items were not voluntarily furnished by the contractor; and (5) the extra items were not rendered necessary by any fault of the contractor. (Watson Lumber Co. v. Guennewig (1967), 79 Ill.App.2d 377, 389-90, 226 N.E.2d 270.) Moreover, our courts have continually reiterated that the proof that the items are extra that the defendant ordered them as such and agreed to pay for them must be by clear and convincing evidence. R & R Constr. v. Junior College Dist. No. 529 (1977), 55 Ill.App.3d 115, 118, 12 Ill.Dec. 795, 370 N.E.2d 599, quoting Guennewig, 79 Ill.App.2d at 390, 226 N.E.2d 270; see also Athens v. Prousis (1989), 190 Ill.App.3d 349, 356, 137 Ill.Dec. 750, 546 N.E.2d 695; Cencula v. Keller (1989), 180 Ill.App.3d 645, 652, 129 Ill.Dec. 409, 536 N.E.2d 93; Ambrose v. Biggs (1987), 156 Ill.App.3d 515, 520, 108 Ill.Dec. 918, 509 N.E.2d 614; Wingler v. Niblack (1978), 58 Ill.App.3d 3d 287, 289, 15 Ill.Dec. 817, 374 N.E.2d 252.

Defendant argues that plaintiff failed to establish by clear and convincing evidence that the work in question was extra. She urges that the trial court's judgment for plaintiff was against the manifest of the evidence.

It is well established that "[c]lear and convincing evidence is considered more than a preponderance while not approaching the degree of proof necessary to convict a person of a criminal offense." (In re Estate of Ragen (1979), 79 Ill.App.3d 8, 14, 34 Ill.Dec. 523, 398 N.E.2d 198.) " 'The manifest weight of the evidence is that which is the clearly evident, plain and indisputable weight of the evidence.' [Citations.] In order for a finding to be contrary to the manifest weight of the evidence an opposite conclusion must be clearly apparent. [Citation.]" In re Application of County Collector (1978), 59 Ill.App.3d 494, 499, 16 Ill.Dec. 680, 375 N.E.2d 553.

At the trial below, ¹ four witnesses testified. Plaintiff testified, inter alia, that the extra work included installation of 12 new steam pipe lines, which were run from the new boilers in the basement to 12 radiators in the second and third floor apartments, and work on the walls and floors of the premises to accommodate the lines; defendant orally requested the new steam lines and promised to pay for them; the work was outside the scope of the contract since it was always his intent to use the existing pipe lines to hook-up the boilers to the radiators; he did not submit plans to the city because he did not believe the Ordinance applied to the job; and the boiler installation was subcontracted out to a third party.

Mr. Poulas, an expert witness for plaintiff, testified that he was not a licensed plumber but had been in the heating business in the Chicago area for over thirty-five years. He stated "that he did not know how many lines were run from the basement to the * * * floors" but, "individual lines were run from the basement to the radiators in the second and third floor apartments." However, Mr. Poulas offered no other testimony to establish that the work was extra, and what he did testify to was based on his visit to the second floor only.

Defendant testified on her counterclaim as to the faulty work provided by plaintiff as well as the case-in-chief. The record reflects that defendant testified that "other than the boiler change for which she agreed to pay an extra $1,000, she never requested that any extra work be done by plaintiff." She conceded that "individual lines were run from the basement to the radiators on the second floor" but denied requesting this "configuration as an extra." Defendant further stated that she considered the running of pipes from each boiler to the floor that boiler was to heat as incidental and necessary to the work required under the written contract, and that the configuration proposed by plaintiff, i.e., connecting the existing pipe lines in the basement to the new boilers and then through the original boiler which already had pipe lines extending from the basement to the individual floors would not give rise to separate heating systems and hence separate billings.

Mr. Cannon, husband of defendant, corroborated her testimony when he testified "that [although] individual lines were run from the basement to the second floor through his apartment (on the first floor), no lines were run from the basement to the third floor." When asked on cross-examination "how does heat get to the third floor apartment if there are no pipes from the basement to the third floor radiators," Mr. Cannon replied "that the new boiler for the third floor was connected to the original boiler by piping in the basement, and the heat was sent to the third floor through the original pipes in the old heating system."

As noted previously, the law in Illinois applicable to the subject of extras is specifically enunciated. (Watson Lumber Co. v. Mouser (1975), 30 Ill.App.3d 100, 109, 333 N.E.2d 19, quoting Bully & Andrews, Inc. v. Symons Corp. (1975), 25 Ill.App.3d 696, 699-700, 323 N.E.2d 806.) In the instant case, the record is devoid of evidence as to elements 4 and 5 and the evidence is disputed as to elements 2 and 3. (See Guennewig, 79 Ill.App.2d at 389, 226 N.E.2d 270.) The testimony of plaintiff urges that defendant requested and agreed to pay for the extra work. Conversely, defendant denied those allegations. Defendant insinuates that plaintiff voluntarily installed the lines as necessitated by the contractual agreement; however, she offered no evidence to substantiate the theory and neither did plaintiff offer any evidence to dispute it once placed into issue by the defendant. Although the trial court made no specific findings of fact, we can infer from its judgment for plaintiff that it agreed with plaintiff. We disagree with that conclusion, finding it to be overbroad, and general; moreover, based on our review of the record, we conclude that plaintiff failed to establish by clear and convincing evidence that he was entitled to additional payment for extra work.

Plaintiff further argues that he presented some evidence on each element; and consequently, we are to disregard the fact that defendant presented...