General Refrigeration & Plumbing Co. v. Goodwill Industries of St. Louis, Missouri

• Court: Appellate Court of Illinois
• Writing for the Court: JONES
• Citation: General Refrigeration & Plumbing Co. v. Goodwill Industries of St. Louis, Missouri, 333 N.E.2d 607, 30 Ill.App.3d 1081 (Ill. App. 1975)
• Decision Date: 04 August 1975
• Docket Number: No. 74--397,74--397
• Parties: GENERAL REFRIGERATION AND PLUMBING COMPANY, a corporation, Plaintiff-Appellant, v. GOODWILL INDUSTRIES OF ST. LOUIS, MISSOURI, et al., Defendants-Appellees.

Page 607

333 N.E.2d 607

30 Ill.App.3d 1081

GENERAL REFRIGERATION AND PLUMBING COMPANY, a corporation Plaintiff-Appellant, v. GOODWILL INDUSTRIES OF ST. LOUIS, MISSOURI, et al Defendants-Appellees.

No. 74--397.

Appellate Court of Illinois, Fifth District.

Aug. 4, 1975.

David M. Duree, Kenney, Leritz & Reinert, St. Louis, Mo., of counsel, for plaintiff-appellant.

Burroughs, Simpson & Wilson, Edwardsville, Arthur L. Greenwood, Wood River, of counsel, for defendants-appellees.

JONES, Presiding Justice:

Plaintiff General Refrigeration and Plumbing Company, brought an action to recover the value of services rendered and materials supplied in the amount of $634.59. Judgment was rendered in favor of plaintiff with respect to defendant Seidel Company, Inc. and against plaintiff with respect to Goodwill Industries of St. Louis, Missouri and Marjorie Wonnacott. Plaintiff appeals from the judgment only with respect to Goodwill Industries.

In the spring of 1973 Seidel Company owned a building located in Alton, Illinois which it had leased to Goodwill Industries. Goodwill Industries used the building for operation of a branch store which at that time was managed by Mrs. Wonnacott. As a result of flood conditions along the Mississippi River, flood waters entered the building and caused damage to the heating equipment. In order to have the equipment repaired Mrs. Wonnacott telephoned General Refrigeration, which had done maintenance or repair work previously in the Alton Goodwill store at the request of Mrs. Wonnacott.

After examining the damage and determining that major repairs were required, a representative of General Refrigeration advised Mrs. Wonnacott that she should contact the St. Louis Office of Goodwill Industries for permission to proceed with the repairs. Shortly thereafter Mrs. Wonnacott again contacted General Refrigeration and stated that they should undertake the repairs as she had the necessary authority. General Refrigeration then completed the repairs and submitted its invoices to the Alton Goodwill store in the amount of $634.59.

A few days after General Refrigeration had completed the repairs flood waters again entered the building, apparently causing damage to the air conditioning equipment. Mrs. Wonnacott again called General Refrigeration and repairmen were sent to the Alton store to undertake the repairs. Shortly after the repairmen began their work it come to the attention of General Refrigeration that there was some dispute as to whether or not Mrs. Wonnacott had been authorized to have the repairs made. As soon as General Refrigeration became aware of this the repairmen were ordered to cease their work, which they did immediately. This cause of action concerns only the work done by General Refrigeration prior to the second flood.

At the outset we should point out that defendant Seidel Company has not taken an appeal from the judgment of the lower court. Furthermore, we should point out that no counterclaims were pursued by any of the defendants in the court below. At the beginning of the trial, counsel for Seidel Company made an oral motion to file a 'third party action' against Goodwill Industries (by which motion we think he meant to file a counterclaim; see Ill.Rev.Stat., ch. 110, sec. 25 and sec. 38). At any rate, the motion was denied, so that the plaintiff's claim was the only one involved at trial.

Furthermore, although the record shows that there was some dispute over whose duty it was to pay for the repair of the heating unit under the lease, the lease was not admitted into evidence and does not appear in the record. It is not clear upon what theory the trial court found against defendant Seidel Company without ever having considered the lease entered into by Seidel Company and Goodwill Industries. Seidel Company sought to have the lease admitted into evidence, but its request was denied. Nevertheless, Seidel Company, the only defendant which had a judgment for damages rendered against it in the trial court, has not appealed and neither party involved in this appeal discusses the effect of not having the lease in evidence.

Irrespective of any lease considerations, plaintiff contends that Goodwill Industries should be bound either because Mrs. Wonnacott was an agent acting with apparent authority to bind Goodwill Industries or because Goodwill Industries acted as the agent of an undisclosed principal (Seidel Company). Pointing out once again that we are not herein dealing with liabilities under the lease, we feel that General Refrigeration is not entitled to judgment against Goodwill Industries on the basis of the issues brought before this court.

Plaintiff first contends that Mrs. Wonnacott was clothed with apparent authority to bind Goodwill Industries for the services rendered by plaintiff either because she was the general agent of Goodwill Industries or because of an established course of dealing between the parties.

'The theory of apparent authority rests on two premises: a manifestation by the principal to a third party, and belief by that third party that the extent of the authority granted to the agent encompasses the contemplated activity. (Restatement (Second) Of Agency (1958) sec. 8.)' Simpson v. Compagnie Nationale Air France, 42 Ill.2d 496, 500, 248 N.E.2d 117, 120.

'(A)pparent authority to do an act is created as to a third person by written or spoken words or any other conduct of the principal which, reasonably interpreted, causes the third person to believe that the principal consents to have the act done on his behalf by the person purporting to act for him.' Restatement, Second, Agency sec. 27.

Plaintiff asserts that Mrs. Wonnacott, as manager of the Alton Goodwill store, was the general agent of Goodwill Industries and, as such, had apparent authority to bind Goodwill Industries. Plaintiff cites Hodges v. Bankers Surety Company, 152 Ill.App. 372. However, the evidence clearly shows that plaintiff did not in fact believe that Mrs. Wonnacott's authority, as manager of the Alton store, extended to repairs such as are herein involved. Mr. Thomas DeClew, vice-president of General Refrigeration, testified at the trial and made numerous references to the fact that he knew Mrs. Wonnacott did not have authority to authorize repairs which would require a substantial expenditure of money on the part of Goodwill Industries. Some of these references are as follows:

'Except that I did have our people to call and tell them it was going to run quite a bit of money and they better get the okay from the St. Louis office.

Our dealing was with the Goodwill people on Third Street (the Alton store). I told our people to tell her it was up to her to get the okay from whoever, whether it was the main office in St. Louis or who.

I knew this lady was just the manager and I didn't want any confusion and I wanted her to realize this.

I knew she had to deal with the St. Louis office and I instructed my people to tell her it would be quite expensive and then I don't know who she called.

Q. You did recognize the fact somebody beyond her had some authority, because she didn't have it herself?

A. Correct.'

Plaintiff further asserts that Mrs. Wonnacott had apparent authority to bind Goodwill Industries because of a previous course of dealing. Plaintiff's brief states:

'When Goodwill Industries held out Mrs. Wonnacott as the manager of the Alton store, and especially when Goodwill Industries Paid the invoices submitted for similar work previously performed at the request of Mrs. Wonnacott, it clothed Mrs. Wonnacott with apparent authority to bind it for the services performed at her request in the Spring of 1973. Mrs. Wonnacott's apparent authority stemmed from Goodwill Industries's custom and previous course of dealing established By honoring invoices for similar work performed at the request of Mrs. Wonnacott.' (emphasis added.)

Although the testimony indicated that General Refrigeration had done work for the Alton Goodwill store in the past at the request of Mrs. Wonnacott, and that General Refrigeration had sent bills for such work to Goodwill, there is nothing in evidence which shows that Goodwill Industries paid for these past services. Mrs. Wonnacott stated that she had no knowledge of who had paid the bills; Mr. DeClew was not sure who had paid the bills. No record of any kind of past payments by Goodwill Industries was introduced. This would seem to be a crucial factor in determining the existence of a course of dealing by which Goodwill Industries might be bound. It is just as conceivable that the Seidel Company, the owner of the building, had paid the bills as it is that the Goodwill Industries had paid them. The court is certainly under no duty to find a course of dealing by guessing as to what has occurred between the parties in the past.

Furthermore, the testimony of Mr. DeClew indicates that the repairs made to the heating unit of the Goodwill store during the spring of 1973 were not the ordinary maintenance type of repairs previously performed at the store by General Refrigeration.

'Q. Mr. DeClew, you previously billed Goodwill for some other services there.

A. Yes sir.

Q. What type of services were those?

A. Repairs for heating and air conditioning.

Q. Keeping it going?

A. Yes.

Q. Mr. DeClew if I get this correctly, before you did the major work on this $610.00 bill you called and relayed the information that the parts would be expensive?

A. Yes, that's the only reason I instructed our people to do it. I knew this lady was just the manager and I didn't want any confusion and I wanted her to realize this.'

With General...