Triangle Sign Co. v. Weber, Cohn & Riley

• Decision Date: 21 November 1986
• Docket Number: No. 85-3172,85-3172
• Citation: 103 Ill.Dec. 294,149 Ill.App.3d 839,501 N.E.2d 315
• Parties: , 103 Ill.Dec. 294 TRIANGLE SIGN COMPANY, an Illinois corporation, Plaintiff-Appellee, v. WEBER, COHN & RILEY, Defendant-Appellant, and The City of Chicago, Defendant.
• Court: United States Appellate Court of Illinois

Page 315

501 N.E.2d 315

149 Ill.App.3d 839, 103 Ill.Dec. 294

TRIANGLE SIGN COMPANY, an Illinois corporation, Plaintiff-Appellee, v. WEBER, COHN & RILEY, Defendant-Appellant, and The City of Chicago, Defendant.

No. 85-3172.

Appellate Court of Illinois,

First District, Fifth Division.

Nov. 21, 1986.

Arvey, Hodes, Costello & Burman, Chicago (Donald F. Spak and Francesca J. Robertson, of counsel), for defendant-appellant.

Stanley J. Horn, Orlana E. Wyshnytzky, Horn, Randall & Associates, Ltd., Chicago, for plaintiff-appellee.

Presiding Justice SULLIVAN delivered the opinion of the court:

This is an appeal from a judgment on the pleadings for plaintiff in an action for payment of an amount due for certain services performed.

On November 28, 1984, plaintiff, Triangle Sign Co, (Triangle) filed a one-count, five-paragraph, second-amended complaint against defendants, Weber, Cohn & Riley (WC & R) and the city of Chicago (City), alleging, essentially, that on or about November 20, 1982, it was hired by defendants to build or service signs for the Chicago Sesquicentennial Commission; that it performed the work for which it had been engaged; that there was an unpaid balance due therefor of $22,500; and that despite its repeated demands, defendants refused to make payment.

WC & R's answer admitted all but the final allegation and included therein an affirmative defense in which it asserted that in July or August 1982, it entered into an oral agreement with the city of Chicago whereby the City authorized it to serve as the advertising, promotion and marketing agent for the City's sesquicentennial celebration; that under the terms of that agreement, it was to hire such suppliers as were necessary to perform various services relating to and in preparation for the celebration; that all billings were to be directed to the City by invoices submitted periodicallyas In its reply, Triangle stated that it neither admitted nor denied the allegations contained in the affirmative defense without strict proof thereof. Triangle then moved for judgment on the pleadings on the ground that, because WC & R had admitted that the work for which it (Triangle) was hired had been performed and that payment of $22,500 had not been made, it was entitled to judgment as a matter of law. In opposition thereto, WC & R argued that having retained Triangle solely in its capacity as an agent for a disclosed principal, it was not liable for the amount due.

[103 Ill.Dec. 295] the individual projects reached [149 Ill.App.3d 841] completion; that it retained Triangle solely in its capacity as agent of the City; that it was the clear understanding of the parties that the City was responsible for compensating Triangle for its services; that on February 23, 1983, it (WC & R) submitted an invoice to the City identifying the services performed by Triangle and requested the issuance of a check therefor in the amount of $22,500; but that although obligated by the agreement to pay Triangle, the City refused to do so. WC & R also filed a counterclaim against the City in which it reiterated the allegations asserted in its affirmative defense and sought indemnification from the City on Triangle's claims.

After a hearing, on June 25, 1985, the trial court entered an order (1) granting Triangle's motion for judgment on the pleadings and (2) denying the City's motion to dismiss Triangle's complaint, and giving it 28 days to file an answer thereto. ¹

On July 23, 1985, WC & R filed motions (a) for reconsideration and vacatur of the June 25 order, (b) for judgment on the pleadings in its favor as to Triangle's claims, and (c) for a default judgment against the City.

The following day, the City moved to dismiss WC & R's counterclaim for failure to state a cause of action, asserting that it did not set forth facts establishing the existence of a contract or the terms thereof, and that in any event, by reason of the sections of the "Municipal purchasing act for cities of 500,000 or more population" (Ill.Rev.Stat.1985, ch. 24, pars. 8-10-1 through 10-24), (The Municipal Purchasing Act), which provide that "[t]he purchasing agent shall: * * * (b) constitute the sole agent of the municipality in contracting for labor, materials, service or work * * *" (Ill.Rev.Stat.1985, ch. 24, par. 8-10-16(b)); that " * * * all purchase orders or contracts of whatever nature, for labor, services or work * * * involving amounts in excess of $10,000, made by or on behalf of any such municipality, shall be let by free and open competitive bidding after advertisement, to the lowest responsible bidder * * * " (Ill.Rev.Stat.1985, ch. 24, par. 8-10-3); and that "[a]ny purchase order or contract executed in violation of this Division 10 shall be null and void as to the municipality * * * " (Ill.Rev.Stat.1985, ch. 24, par. 8-10-21),--WC & R was not authorized to act as its agent in contracting with Triangle for services related to the sesquicentennial celebration, and that any such alleged agreement was invalid and could not therefore serve as the legal basis for WC & R's breach of contract action. The City also filed an answer to Triangle's second amended complaint, denying the material allegations therein and reiterating, as affirmative defenses, the allegations set forth in its motion to dismiss WC & R's counterclaim.

In a memorandum in response to the City's motion to dismiss, WC & R argued that the counterclaim adequately set forth facts supporting a breach of contract action; that section 11-106-1 of the Illinois Municipal Code providing that "[i]n all municipalities with 500,000 or more inhabitants, the corporate authorities may enter into any contract with any person for the purpose of arranging for the holding of any * * * celebrations in the municipality In a reply thereto, the City argued, inter alia, that the exceptions cited by WC & R nevertheless contemplate the existence of a valid contract in the first instance and, in the absence thereof, are inapplicable.

* * * and to provide for the payment of any expense necessarily incurred in contracting for the holding of any of the specified events out of the miscellaneous receipts of the municipality which have not been otherwise appropriated," (Ill.Rev.Stat.1985, ch. 24, par. 11-106-1), and section 8-10-4 of the Municipal Purchasing Act stating that "[C]ontracts which by their nature are not adapted to award by competitive bidding, such as but not limited to contracts for the services of individuals possessing a high degree of professional skill where the ability or fitness of the individual plays an important part, * * * shall not be subject to the competitive bidding requirements of this Article," (Ill.Rev.Stat.1985, ch. 24, par. 8-10-4), constitute exceptions to those sections of the Municipal Purchasing Act relied on by the City; and that even assuming...