Maxfield v. Simmons

• Decision Date: 13 April 1983
• Docket Number: No. 57017,57017
• Citation: 70 Ill.Dec. 236,96 Ill.2d 81,449 N.E.2d 110
• Parties: , 70 Ill.Dec. 236, 36 UCC Rep.Serv. 553 Jerry MAXFIELD v. Paul E. SIMMONS, Appellant. (Walter DeNeal et al., Appellees).
• Court: Illinois Supreme Court

Page 110

449 N.E.2d 110

96 Ill.2d 81, 70 Ill.Dec. 236, 36 UCC

Rep.Serv. 553

Jerry MAXFIELD v. Paul E. SIMMONS, Appellant (Walter DeNeal et al., Appellees).

No. 57017.

Supreme Court of Illinois.

April 13, 1983.

David W. Hauptmann, Harrisburg, for appellee, Walter DeNeal, d/b/a DeNeal Building Supply.

Harris, Lambert & Wilson, Marion, for Paul E. Simmons.

GOLDENHERSH, Justice:

Defendant and third-party plaintiff, Paul E. Simmons (Simmons), appealed from the order of the circuit court of Saline County dismissing with prejudice his third -party complaint against Walter DeNeal, doing business as DeNeal Building Supply (DeNeal), and Jesse B. Holt, Inc. (Holt). The appellate court affirmed (107 Ill.App.3d 341, 63 Ill.Dec. 190, 437 N.E.2d 839), and we allowed Simmons' petition for leave to appeal.

On August 16, 1978, Jerry Maxfield filed a complaint against Simmons alleging that the single-family dwelling which Simmons had built for him did not comply with the contract specifications because the roof was constructed in a "poor and shoddy manner as to cause the roof thereon to buckle, bend and dip, and caused the interior ceiling to crack, split at the seams and bulge." On May 12, 1980, Simmons filed a third-party complaint against DeNeal and Holt. In the third-party complaint as amended, Simmons alleged that if he were found liable to the plaintiff, it would be because the trusses supplied by DeNeal and manufactured by Holt were defective, and alleged that the third-party plaintiff was "entitled to indemnity or contribution from third-party defendants." Both DeNeal and Holt moved to dismiss the third-party complaint, inter alia, on the ground that the statute of limitations had run against third-party plaintiff Simmons. Holt attached an affidavit of its president, Jesse B. Holt, in which it is stated that the trusses referred to in the third-party complaint were delivered by Holt to DeNeal on April 3, 1974. DeNeal filed an affidavit in which he stated that the trusses were delivered directly by Holt to Simmons on April 3, 1974. The circuit court entered an order dismissing the amended third-party complaint with prejudice on the basis that the four-year statute of limitations contained in section 2-725 of the Uniform Commercial Code (Ill.Rev.Stat.1977, ch. 26, par. 2-725) had run.

The appellate court, in three opinions, affirmed. The lead opinion filed by the appellate court, relying on Board of Education v. Joseph J. Duffy Co. (1968), 97 Ill.App.2d 158, 240 N.E.2d 5, and Talandis Construction Corp. v. Illinois Building Authority (1974), 23 Ill.App.3d 929, 321 N.E.2d 154, held that the third-party complaint failed to state a cause of action for the reason that "a stranger to a contract between two parties cannot be compelled to indemnify one of the parties for breach of contract absent the stranger's express agreement to so indemnify." (107 Ill.App.3d 341, 343, 63 Ill.Dec. 190, 437 N.E.2d 839.) The concurring opinion held that the sale of the trusses "was simply a sale of goods under the Uniform Commercial Code" and that under section 2-725 (Ill.Rev.Stat.1979, ch. 26, par. 2-725) "any action for breach of any contract for sale must be commenced within four years after the cause of action accrues." (107 Ill.App.3d 341, 344, 63 Ill.Dec. 190, 437 N.E.2d 839 (Karns, P.J., concurring).) The dissenting opinion held that the third-party complaint stated a cause of action and that the cause of action will not ripen until the third-party plaintiff is found liable in the original action. It characterized the action brought by the plaintiff "as one for a tortious breach of contract." 107 Ill.App.3d 341, 344, 63 Ill.Dec. 190, 437 N.E.2d 839 (Welch, J., dissenting).

Simmons contends that when DeNeal sold the trusses he knew or should have known that they were to be used in the roof of a house and that the relationship between Simmons and DeNeal and Holt "gives rise to an implied contract of indemnity." He argues that Board of Education v. Joseph J. Duffy Co. (1968), 97 Ill.App.2d 158, 240 N.E.2d 5, is distinguishable in that the plaintiff board of education had separate contracts with each of the defendants, Perkins and Duffy, but there was no relationship of any kind between the defendants. Talandis Construction Corp. v. Illinois Building Authority (1974), 23 Ill.App.3d 929, 321 N.E.2d 154, he argues, is not authority contrary to his position for the reason that the court did not consider the tortious relationship as the basis for indemnity.

DeNeal contends that the appellate court correctly held that the statute of limitations contained in the Uniform Commercial Code had run and that the third-party complaint failed to state a cause of action. It argues that there is no allegation of "a qualitative distinction between the conduct of the parties" and that there is no pretort relationship between the parties which could give rise to an implied contract of indemnity.

We have considered DeNeal's argument based on Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill.2d 69, 61 Ill.Dec. 746, 435 N.E.2d 443, that "The Uniform Commercial Code provided the proper framework for recovery of economic losses and to allow the extension of the tort theories of strict liability, negligence or innocent misrepresentation to cover solely economic losses would, in effect, eviscerate the comprehensive scheme of remedies fashioned by the U.C.C." We do not view Moorman as controlling here. In Moorman, this court noted that "the law of sales has been carefully articulated to govern the economic relations between suppliers and...