Ernest Freeman & Co. v. Robert G. Regan Co.

• Decision Date: 17 December 1947
• Docket Number: Gen. No. 44019.
• Citation: 76 N.E.2d 514,332 Ill.App. 637
• Court: United States Appellate Court of Illinois
• Parties: ERNEST FREEMAN & CO. v. ROBERT G. REGAN CO.

332 Ill.App. 637

76 N.E.2d 514

ERNEST FREEMAN & CO.

v.ROBERT G. REGAN CO.

Gen. No. 44019.

Appellate Court of Illinois, First District, Third Division.

Dec. 17, 1947.

Appeal from Circuit Court, Cook County; Joseph E. Daily, Judge.

Action by Ernest Freeman & Company against the Robert G. Regan Company, to recover on a letter in which defendant promised to pay a certain sum of money or stock to plaintiff. From a judgment for the plaintiff, the defendant appeals.

Judgment reversed and cause remanded with directions.Henry S. Blum, of Chicago (George M. Shkoler and Bernard G. Sang, both of Chicago, of counsel), for appellant.

Dempsey, Mills & Casey, of Chicago (Lawrence C. Mills and John W. Mills, both of Chicago, of counsel), for appellee.

BURKE, Justice.

In a complaint at law filed in the Superior Court of Cook County on August 19, 1942 by Ernest Freeman and Company, a corporation, against Regan Contracting Corporation, a corporation, Robert G. Regan Company, a corporation, and Robert G. Regan, plaintiff alleged that it was in the business of installing electric wiring, fixtures and equipment; that Robert G. Regan is in the building and contracting construction business which he conducts in his own name and in the names of the defendant corporations; that he is the president and owns or controls ‘both of the defendant corporations'; that all of the defendants occupied the same offices and places of business and ‘in fact are but one business, alternating using one, two or all of said names, and whose assets and properties are so commingled that they are in fact one ownership’; that on or about October 3, 1939 Robert G. Regan, individually and as president of the other two defendants, entered into an agreement with plaintiff by which the latter was employed to perform all labor and work and furnish all materials for the complete electrical installation of 160 row houses and apartment buildings containing 394 apartments, garages and boiler house, to be constructed in Chatham Park in Chicago; that it was agreed that plaintiff was to be paid $123,000 for the performance of the work and the furnishing of the materials; that plaintiff did perform the work and furnished the materials and fully performed the terms and conditions of the agreement on or about March 1, 1941; that the defendants failed to perform the terms and conditions of their agreement in that they did not pay plaintiff the price agreed upon; that there is due and owing to plaintiff under the agreement the sum of $2,000; that on or about March 12, 1941 ‘said indebtedness became an account stated’; and that the defendants are jointly and severally indebted to plaintiff in the sum of $2,000, plus interest at 5% per annum from March 12, 1941. Plaintiff asked judgment for $2,000, plus interest thereon at the rate of 5% per annum from March 12, 1941.

In an answer filed on October 2, 1942 in behalf of the ‘Regan Contracting Corporation, an Illinois corporation, Rogre Co. Inc., (formerly known as Robert G. Regan Company), an Illinois corporation, and Robert G. Regan, defendants in this cause,’ they admitted that the named corporations are Illinois corporations; and that on February 24, 1942 the corporate name of Robert G. Regan Company was changed by a certificate of amendment to its articles of incorporation to Rogre Co., Inc. In the answer Regan denies that he is in the building and contracting business or that he conducts the business in his own name; alleges that he is the president of the Regan Contracting Corporation and Rogre Co., Inc., (formerly known as Robert G. Regan Company); denies that he occupies the same office and place of business as the corporations; and the corporate defendants deny that they occupy the same place of business; deny that they are but one business; and deny that their assets or properties are commingled. Regan denied that he, individually or as president of Rogre Co., Inc., entered into an agreement with plaintiff on or about October 23, 1939 by which plaintiff was to perform labor and work and furnish all materials for the electrical installation of the structures at Chatham Park. Regan Contracting Corporation admitted that it entered into the agreement. Regan and Rogre Co., Inc., further denied that they made any agreement with plaintiff as to the payment of $123,000 for such work and labor and the furnishing of materials, while the Regan Contracting Corporation admitted that it agreed to pay plaintiff $123,000 for the performance of the work and labor and the furnishing of materials. Regan and Rogre Co., Inc., further denied that either of them owed plaintiff anything. Regan Contracting Corporation admitted that it owed plaintiff $2,000 with interest at 5% per annum from March 12, 1941.

In a trial before the court without a jury the evidence showed that on October 3, 1939 a written contract was executed between plaintiff and the Regan Contracting Corporation for the furnishing of all materials and the performance of the electrical work on the Chatham Park project for $123,000. The bid of plaintiff was $125,000. It was awarded the contract on agreeing to do the work for $123,000. The contract was performed on the part of plaintiff. When the job was completed, it had received $121,000 and a balance of $2,000 remained due. In that trial plaintiff also introduced as an exhibit a letter on the letterhead of ‘Robert G. Regan Co., Building Construction, 228 N. La Salle Street, Chicago, Ill., March 12th, 1941,’ signed ‘Robert G. Regan Company, by Robert G. Regan,’ addressed to plaintiff and reading: ‘On or before sixty (60) days from date, we shall deliver to you twenty (20) shares of 5% Preferred Stock ($100 par value) of Chatham Park, Inc., or cash for Two Thousand Dollars ($2,000.00).’ Regan testified that neither he, as an individual, or the Robert G. Regan Company had any connection with the Chatham Park contract. Defendant sought to introduce a certified copy of the certificate of amendment to the articles of incorporation of Robert G. Regan Company showing the change of name to Rogre Co., Inc., on February 24, 1942. On objection of plaintiff the court declined to receive the proffered exhibit. The trial judge indicated that he would find the issues for the plaintiff and against the Regan Contracting Corporation and for the defendants, Robert G. Regan Company and Robert G. Regan. Thereupon the attorney for plaintiff called attention to plaintiff's exhibit #2, being the letter of March 12, 1941 and argued that the exhibit showed ‘an obligation from the Regan Company agreeing to pay that $2,000 in writing.’ The court inquired as to the consideration for the promise and counsel answered that the consideration was the ‘waiver’, meaning the waiver by plaintiff of its mechanic's lien. Plaintiff's attorney concluded by saying, ‘Here is a written obligation of the corporation.’ However, the trial judge said he would enter the finding as he had indicated. On January 23, 1945 the court entered an ‘order of judgment’ nunc pro tunc as of January 5, 1945. The order ‘finds that the plaintiff is entitled to judgment as demanded against the defendant, Regan Contracting Corporation, an Illinois corporation, in the sum of $2,000.00, with interest thereon at the rate of 5% per annum from March 12, 1941 to the date of this judgment, January 5, 1945, or a total sum of $2,381.30, together with the costs of this proceeding,’ and also ‘finds the issues for the defendants, Robert G. Regan and Robert G. Regan Company, an Illinois corporation.’ The record does not show that any judgment was entered on these findings.

On April 28, 1945 plaintiff filed a complaint at law in the Circuit Court of Cook County against Robert G. Regan Company alleging that the defendant is an Illinois corporation organized and existing under the laws of the State of Illinois; that defendant, by its president and duly authorized agent, for a valuable consideration, ‘executed in writing its promise to pay to plaintiff’ a certain sum as disclosed in Exhibit ‘A’. This exhibit is the letter introduced in the Superior Court case as plaintiff's Exhibit #2 dated March 12, 1941, signed Robert G. Regan Company, stating that on or before 60 days it would deliver to plaintiff 20 shares of 5% preferred stock of Chatham Park, Inc., or $2,000 in cash. The complaint further alleged that defendant failed to perform its promise by delivering either the stock or the money; that plaintiff made numerous demands on defendant for the performance of its promise, but that defendant refused and failed to perform. Plaintiff asked judgment for $2,000 plus interest at 5% from March 12, 1941.

Defendant filed an answer and amended answers, to which plaintiff filed replies. The case was tried before the court without a jury. Toward the close of the trial, defendant, pursuant to leave of court, filed its second amended answer wherein it denied that it received any consideration for Exhibit ‘A’, attached to the complaint, or that it executed Exhibit ‘A’. Defendant further alleged that it was not in existence under the corporate name of Robert G. Regan Company at the time suit was brought, but that by an amendment to the charter of Robert G. Regan Company on February 24, 1942 the name of that corporation was changed to Rogre Co., Inc.; that at the time the name was so changed a new corporation bearing the name of Robert G. Regan Co. was organized, having no connection with the Rogre Co., Inc., or the prior Robert G. Regan Company, and having no connection ‘with the transaction involved in these proceedings'; that defendant undertook no promise as set forth in the complaint; that it did not make any agreements with plaintiff; that there was no obligation on it to deliver to plaintiff either stock or money as set forth in the complaint; that the cause of action stated in the complaint cannot be maintained by plaintiff because the subject matter was fully adjudicated in the Superior Court...