S. M. Wilson & Co. v. Reeves Red-E-Mix Concrete, Inc.

• Decision Date: 03 June 1976
• Docket Number: No. 75--254,RED-E-MIX,75--254
• Parties: , 19 UCC Rep.Serv. 1125 S. M. WILSON & CO., a corporation, Plaintiff-Appellee, v. REEVESCONCRETE, INC., a corporation, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 321

350 N.E.2d 321

39 Ill.App.3d 353, 19 UCC Rep.Serv. 1125

S. M. WILSON & CO., a corporation, Plaintiff-Appellee, v. REEVES RED-E-MIX CONCRETE, INC., a corporation, Defendant-Appellant.

No. 75--254.

Appellate Court of Illinois, Fifth District.

June 3, 1976.

Rehearing Denied July 7, 1976.

Mateyka & Hill, Granite City, for defendant-appellant; William R. Haine, Alton, of counsel.

Frank C. Mansfield, Springfield, for plaintiff-appellee.

KARNS, Presiding Justice:

Defendant-appellant, Reeves Red-E-Mix Concrete, Inc., appeals from a judgment of $14,123.95 entered in favor of plaintiff-appellee, S. M. Wilson & Company, by the Circuit Court of Madison County after a bench trial. On appeal defendant contends that the judgment is against the manifest weight of the evidence and contrary to law.

Plaintiff was the general contractor in charge of construction of an addition to St. Elizabeth's Hospital in Granite City, Illinois. Plaintiff contracted with defendant, as vendor, for the furnishing of concrete to be mixed to certain specifications supplied by a design laboratory employed by plaintiff. The only specification relevant here is that the concrete was required to have a compressive strength of 3,000 pounds per square inch. Concrete was delivered to the construction site by defendant in trucks containing seven cubic yards of concrete. The concrete was removed from the truck, transported to where it would be used, poured, cured and finished by plaintiff's employees. As was the custom on this particular project, wet concrete was removed from the first load which arrived each day and was submitted to tests for air content, slump, weight and, after hardening, compressive strength. These tests are known as cylinder tests.

When the first truckload arrived on the day in question plaintiff's superintendent, as was his custom, visually inspected the concrete. He pronounced it 'too harsh' or 'rough' and refused to accept the concrete. The concrete was returned to defendant's plant whereupon it was remixed and returned to the construction site. At this point the truck contained eight cubic yards instead of the customary seven. The concrete was approved visually and poured. In the meantime a second truck arrived containing seven cubic yards of concrete upon which cylinder tests were conducted. The remixed concrete was not so tested. Several months later plaintiff discovered that a portion of the sixth floor slab was 'abrading' or 'peeling.' Core samples were taken from the hardened slab and tested for compressive strength. Of the ten samples removed only one indicated the required strength; the others averaged approximately 2400 pounds per square inch compressive strength.

At the insistence of the architect, plaintiff conducted load tests on the slab to see if the slab could be used for the project despite the substandard strength. The first test indicated that the slab would have to be replaced but a second test, conducted pursuant to industry custom, indicated that the strength of the slab was satisfactory for use in the project. The cost of these tests to plaintiff was $14,588.10. Defendant was notified of the defect in the slab and demand was made for payment of the cost of the tests. Demand was refused. Plaintiff then notified defendant that payment for concrete delivered would be withheld as a set-off for the cost of the tests. Defendant thereafter refused to deliver more concrete after delivery of concrete worth $2,521.28. Plaintiff was then required to buy concrete from another source at an added expense of $1,278.96. Judgment was entered for plaintiff for the cost of the tests and the cost of acquiring additional concrete. Judgment in the amount of $1,743.11 was entered in favor of defendant upon its counterclaim for the value of concrete delivered but not paid for. The amount of the judgment appealed from, therefore, is the difference between those two figures. Judgment was entered for defendant on plaintiff's additional count for punitive damages. That judgment is not before us.

Defendant filed an affirmative defense to plaintiff's amended complaint alleging that all concrete delivered by defendant was 'accepted' by plaintiff and that any defect in the finished concrete was solely the fault of plaintiff's employees. At trial, defendant attempted to show that any one of several factors beyond its control could have caused the defect and each was as likely the culprit as defective concrete delivered by defendant. Witnesses for both sides testified that several factors could affect the compression strength of concrete including the design mix, mixing procedures, addition of water, time between mixing and pouring, pouring, curing and finishing techniques, and weather, particularly heat, humidity, and wind velocity. No direct evidence was presented that any concrete was substandard when delivered with the exception of plaintiff's superintendent's rejection of the 'harsh' load. All cylinder tests indicated concrete of the required strength; although, nor every load was tested, including the questionable load. Plaintiff's evidence established that the load refused and subsequently remixed was poured in the area later found to be substandard; although, the evidence was in conflict as to whether this was the only load poured in the area. No evidence was presented that any of plaintiff's employees did anything unusual to the sixth floor slab or in any way contributed to the defect. Plaintiff's evidence showed that at the time the slab was poured the weather was clear and warm with only a slight wind.

Defendant-appellant relies upon a line of cases beginning with Condon v. Schoenfeld, 214 Ill. 226, 230, 73 N.E. 333, 335 (1905), in which the court stated, 'It cannot be said that the existence of a certain fact may reasonably be inferred from the evidence when the existence of another fact inconsistent with the first can be, from the same evidence, inferred with equal certainty.' See also Celner v. Prather, 301 Ill.App. 224, 22 N.E.2d 397 (2d Dist.1939); Wilke Metal Products, Inc. v. David Architectural Metals, Inc., 92 Ill.App.2d 265, 236 N.E.2d 303 (1st Dist.1968). Thus, defendant argues, it cannot be said with certainty that the defect in the sixth floor slab which resulted in the consequential damage to plaintiff was caused by...