Scutt v. LaSalle County Bd.

• Decision Date: 17 June 1981
• Docket Number: No. 80-437,80-437
• Citation: 53 Ill.Dec. 21,423 N.E.2d 213,97 Ill.App.3d 181
• Parties: , 53 Ill.Dec. 21 Robert SCUTT, Edward R. Adams, Tim Pakenham, Allan Mertz, John Rudnicky, Al Adamcyk, and Roger Urban, Plaintiffs-Appellants, v. LaSALLE COUNTY BOARD, Ben Samek, Chairman of the LaSalle County Board, James Callahan, and John Duffy, Chairman of the Fee and Salary Committee, Defendants- Appellees.
• Court: United States Appellate Court of Illinois

Page 213

423 N.E.2d 213

97 Ill.App.3d 181, 53 Ill.Dec. 21

Robert SCUTT, Edward R. Adams, Tim Pakenham, Allan Mertz John Rudnicky, Al Adamcyk, and Roger Urban Plaintiffs-Appellants, v. LaSALLE COUNTY BOARD, Ben Samek, Chairman of the LaSalle County Board, James Callahan, and John Duffy Chairman of the Fee and Salary Committee, Defendants- Appellees.

No. 80-437.

Appellate Court of Illinois, Third District.

June 17, 1981.

Eric B. Deobler of Peter F. Ferracuti & Assoc., Ottawa, for plaintiffs-appellants.

James A. Lanuti and Gary L. Peterlin, State's Attys. Office of LaSalle County, Ottawa, for defendants-appellees.

STOUDER, Justice:

Plaintiffs Robert Scutt, Edward R. Adams, Allan Mertz, John Rudnicky, Al Adamcyk, and Roger Urban are sheriff's deputies who filed a complaint alleging breach of an oral employment contract by defendant LaSalle County Board, and its agents, defendants Ben Samek, James Callahan, and John Duffy. After defendants moved to strike and dismiss the complaint alleging their immunity from suit and the absence of a cause of action, the circuit court of LaSalle County, after considering an amended pleading, dismissed the cause. Plaintiffs then filed a motion to vacate the order of dismissal and a second amended complaint. This appeal is from the trial court's denial of the motion to vacate.

As the order of dismissal was entered upon allowance of defendants' motion, all facts properly pleaded in the complaint must be taken as true. (Kendall v. Kendall (1978), 71 Ill.2d 374, 16 Ill.Dec. 938, 375 N.E.2d 1280.) While plaintiffs' second amended complaint was apparently never formally filed, the trial court stated it had considered the "amended complaints", and this third pleading primarily expands upon the same factual base presented in its predecessors. Under these circumstances and as the second amended complaint has been included in the record on appeal without objection, we shall consider its well-pleaded allegations as true.

On and before December 1, 1978, plaintiffs were employed as deputies by the LaSalle County Sheriff's Department. Their specific status was that of "deputies on probation" and they anticipated being promoted to "deputy/patrolmen". The former officers were paid $10,500; the latter, $12,200.

Prior to the above date, defendant Callahan, then Sheriff of LaSalle County, announced that $1,000 raises would be granted to all deputies in his department. On December 1, 1978, "deputies on probation" began receiving a salary of $11,500 per year; "deputy/patrolmen", $13,200 per year. As the plaintiff "deputies on probation" were promoted, they were not compensated at the new salary; rather, they received $12,200 per year. This was the annual compensation paid to "deputy/patrolmen" prior to December 1, 1978.

Two questions are presented for our review. Did the trial court err in ruling defendants were immune from suit? Did the court err in ruling the complaints failed to state a cause of action?

Turning first to the question of immunity, both sides agree that the Local Governmental and Governmental Employees Tort Immunity Act (Ill.Rev.Stat.1977, ch. 85, par. 1-101 et seq.) governs this issue. While the Act provides a local public entity is not liable for an injury caused by an employee's oral promise or misrepresentation (Ill.Rev.Stat.1977, ch. 85, par. 2-106), as well as providing a public employee is not liable for an act or omission in determining policy (Ill.Rev.Stat.1977, ch. 85, par. 2-201), these provisions are not determinative of the issue at bar. Count I of the plaintiffs' second amended complaint requests money damages and sounds in contract, while Count II requests money damages and injunctive relief alleging a denial of due process and equal protection. The Act provides:

"Nothing in this Act affects the right to obtain relief other than damages against a local public entity or public employee. Nothing in this act affects the liability, if any, of a local public entity or public employee, based on:

a) contract;

* * * "

(Ill.Rev.Stat.1977, ch. 85, par. 2-101.)

As the alleged liability of defendants is based on contract in Count I of the complaint, and relief other than damages is sought in Count II, we find the trial court erred in holding defendants immune from this action, except as to the money damages sought in Count II.

Turning next to the question of the existence of a cause of action, we shall consider each of the complaint's two counts.

Count I alleges the execution of an oral employment contract between defendant LaSalle County Board and the plaintiff deputies. This contract allegedly arose as a result of an announcement that all deputies would receive a $1,000 raise. Breach of the alleged contract allegedly occurred when certain deputies were not compensated at the rate of $13,200 per year. The fact that an initial $1,000 raise, from $10,500 per year to $11,500 per year, was received by these plaintiffs is not contested.

We initially note the words of our supreme court over a century ago:

"The general rules which govern in ordinary cases of contract for work and labor, are simple and easily understood, but often difficult in their practical application to many of the cases which arise in the country, and are constantly presented in our Courts for adjudication. The loose manner in which parties frequently express themselves in making verbal agreements, and not unfrequently when the contracts are in writing, often obscures the intention, and necessarily involves the proper construction to be given to them by Courts and juries, in much doubt and perplexity. The main object to be arrived at, is the intention of the parties, and effect is always to be given to that intention, whenever it can be done without doing violence to the plain and obvious meaning and import of the language employed by the parties themselves, in making the agreement. * * * " (Eldridge v. Rowe (1845), 7 Ill. (2 Gilm.) 91, 95-96.)

In the case at bar, our object is thus to arrive at the intentions of the parties considering the language employed. At the outset, we observe that the only matter to which the parties address themselves is that of an increase in the compensation of present employees. The import of our observation is that we are dealing with a single term rather than with a set of terms. It is uncontroverted that an employer-employee relationship is present. Such a relationship rests upon the contract of the parties. (People v. Chicago, Milwaukee and St. Paul Ry. Co. (1923), 306 Ill. 486, 138 N.E. 155) The definition of "employee" in the Workmen's Compensation Act (Ill.Rev.Stat.1977, ch. 48, par. 138.1 et seq.) "makes it clear that the basis of the relationship is a 'contract for hire, express or implied, oral or written, * * * ' (citation)" (McHugh-Brighton v. Industrial Commission (1969), 42 Ill.2d 52, 56, 245 N.E.2d 480, 482). Thus, there is a contract between the parties based on their relationship.

If there had been no announcement regarding compensation, no question would here arise. Ignoring, for the moment, the durational term involved, we note the words of our supreme court:

"The rule undoubtedly is that if one person employ another at an agreed price for a time certain, and the employment is continued after the expiration of the time agreed upon, without any new agreement as to price, the presumption is that the parties understood that the original rate of compensation is also to be continued; and it can make no difference that there may be some change in the services required and performed, as that there be an increase or diminution of the labor, so long as it is clearly within the scope of the original employment. The reason is that if the employe remains in the same employment after his term of service has expired without making demands for increased pay, the employer may well presume that no increased compensation is expected or will be required; and having acted upon that presumption, and failed to protect himself by a new contract, the employe will be held to have assented to a performance of the service at the original price. The rights of the employe and employer are mutual and reciprocal. So, where the employer permits a continuation of the service after the term has expired, without a new stipulation as to the price, it will be presumed that he expected and intended to pay for the services the original compensation stipulated. In such case, the recovery will not be upon the quantum meruit, but upon the contract implied by law, and for the compensation presumed to have been fixed by the parties. Wallace v. Floyd, 29 Pa.St. 184; Ranck v. Albright, 36 Pa.St. 367; Factory Co. v. Richardson, 5 N.H. 295; Sewing-Machine Co. v. Bulkley, 48 Ill. 189." (Ingalls v. Allen (1890), 132 Ill. 170, 174, 23 N.E. 1026, 1027.)

Considering the above principles, it can be seen that the question is not whether the parties entered into a contract; rather, the question is whether that contract has been modified.

The modification of a contract by subsequent agreement is subject to the rules governing all contracts. (See 12 I.L.P. Contracts, § 321 (1955).) Bearing this in mind, we consider the elements of a contract:

"A contract, by ancient definition, is 'an agreement between competent parties, upon a consideration sufficient in law, to do or not to do a particular thing.' People v. Dummer (1916), 274 Ill. 637, 640, 113 N.E. 934, 935.

An offer, an acceptance (Milanko v. Jensen (1949), 404 Ill. 261, 266, 88 N.E.2d 857; Geary v. Great Atlantic & Pacific Tea Co. (1937), 366 Ill. 625, 627, 10 N.E.2d 350; Dick v. Halun (1931), 344 Ill. 163, 165-66, 176 N.E. 440; Restatement (Second) of Contracts secs. 19, 22 (Tent. Draft No. 1, 1964)), and consideration (Moehling v. W.E. O'Neil Construction Co. (1960), 20 Ill.2d 255, 265, 170 N.E.2d 100; Green v. Ashland Sixty-Third State Bank (1931), 346 Ill. 174, 178, 178 N.E. 468) are basic ingredients of a contract. * * * " ...