Unicon Management Corp. v. City of Chicago, 16831.

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtSWYGERT, FAIRCHILD and CUMMINGS, Circuit
Citation404 F.2d 627
PartiesUNICON MANAGEMENT CORP., Plaintiff-Appellee, v. CITY OF CHICAGO, Defendant-Appellant.
Docket NumberNo. 16831.,16831.
Decision Date20 December 1968

404 F.2d 627 (1968)

UNICON MANAGEMENT CORP., Plaintiff-Appellee,
CITY OF CHICAGO, Defendant-Appellant.

No. 16831.

United States Court of Appeals Seventh Circuit.

December 20, 1968.

404 F.2d 628

Raymond F. Simon, Brendan Q. O'Brien, Chicago, Ill., for defendant-appellant.

Herbert Morton, Richard A. Greig, John O. Snook, Chicago, Ill., for plaintiff-appellee.

Before SWYGERT, FAIRCHILD and CUMMINGS, Circuit Judges.

CUMMINGS, Circuit Judge.

This is an interlocutory appeal taken under Section 1292(b) of the Judicial Code (28 U.S.C. § 1292(b)) from the district court's denial of a motion to dismiss the complaint, filed by the defendant City of Chicago. This diversity action was brought by Unicon Management Corp., formerly the Malan Construction Corp., a New York corporation, to recover damages assertedly caused by the City's delays in approving wall panels and doors for the Eastern Airlines hangar built by Unicon at O'Hare International Airport in Chicago.

In April 1960, Unicon and the City executed a contract for the construction of this hangar for $3,794,000. The contract required Unicon to complete its work by May 16, 1961. The complaint alleged that the City notified Unicon to proceed with its work even though the essential site work and grading had not yet been completed. The complaint also charged that the City failed to approve wall panels for the hangar for 10 months and doors for 4 months.1 Count I claimed that these delays caused Unicon to incur $525,000 in additional costs and expenses in the performance of its contract work. Count II is a quantum meruit claim for the same amount. The complaint labeled the City's failure to approve these items promptly as "arbitrary, capricious, and unjustified procrastination."

The City's motion to dismiss relied on Section GC120 of the contract as relieving it of any liability for these delays. That Section provides:

"(A) Anything contained in the conditions or specifications document to the contrary notwithstanding, it is agreed that the following provisions relative to unavoidable delay shall be controlling:
"1. Should the Contractor be obstructed or delayed in the commencement, prosecution or completion of the work hereunder by any act or delay of the City or by unavoidable acts or delays on the part of transportation companies in transporting, switching or delivering material for said work, or by acts of public authorities, or by riot, insurrection, war, pestilence, fire, lightning, earthquake, cyclone, or through any delays or defaults of other parties under contract with said City or due to unavoidable delays in obtaining the specified materials or equipment for said work because of controlled materials, priorities, allocations, or prohibitions established by the United States of America, or due to strikes that cause unavoidable delays in performing said work, or to other unavoidable causes (except wet or cold weather), and provided the Purchasing Agent shall determine that any of such causes or delays were entirely beyond the control of the Contractor, then
404 F.2d 629
the times herein fixed for the completion of said work shall be extended for a period equivalent to the time lost by reason of any of the aforesaid causes or delays mentioned herein.2 No such allowance of time shall be made, however, unless notice in writing of a claim therefor is presented to the Purchasing Agent before the 30th day of each succeeding month of all delays occurring within the preceding month, and the Contractor shall satisfy the Purchasing Agent that the delays so claimed are unavoidable and substantial, and could not be reasonably anticipated or adequately guarded against, and said allowance of time is authorized in writing by the Mayor, Comptroller and Purchasing Agent.
"2. It is further expressly understood and agreed that the Contractor shall not be entitled to any damages or compensation from the City, or be reimbursed for any losses, on account of any delay or delays resulting from any of the causes aforesaid. The Commissioner and the Purchasing Agent shall determine the number of days, if any, that the

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9 cases
  • Chicago College of Osteopathic Medicine v. George A. Fuller Co., s. 82-2176
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 10 Mayo 1983
    ...of the delay provision yields a fair result, Illinois case law is to the contrary. Unicon Management Corp. v. City of Chicago, 404 F.2d 627 (7th Cir.1968) (Illinois law applied); 2 Herlihy Mid-Continent Co. v. Sanitary Dist., 390 Ill. 160, 60 N.E.2d 882 (1945); Underground Construction Co. ......
  • A Kan. Corp.. v. Mohawk Constr., Case No. 06-1043-JTM.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • 16 Marzo 2010
    ...Underground Constr. Co. v. Sanitary Dist. of Chicago, 367 Ill. 360, 11 N.E.2d 361 (1937); See also Unicon Management Corp. v. Chicago, 404 F.2d 627, 631 (7th Cir.1968). It is clear from the terms of the contract that Supplemental Condition 12.5 protects Lake Forest from damages arising out ......
  • Gust K. Newberg, Inc. v. Illinois State Toll Highway Authority, 2-86-0262
    • United States
    • United States Appellate Court of Illinois
    • 31 Marzo 1987
    ...('the parties themselves have provided' the answer to delay-damages claim); Unicon Management Corp. v. City of Chicago (7th Cir.1968), 404 F.2d 627, 631 ('The City bargained [153 Ill.App.3d 928] for the right to delay * * *')." 109 Ill.2d 225, 231, 93 Ill.Dec. 369, 486 N.E.2d As stated abov......
  • Bates & Rogers Const. Corp. v. Greeley & Hansen, 61386
    • United States
    • Supreme Court of Illinois
    • 21 Noviembre 1985
    ...("the parties themselves have provided" the answer to the delay-damages claim); Unicon Management Corp. v. City of Chicago (7th Cir.1968), 404 F.2d 627, 631 ("The City bargained for the right to delay * * * This holding is consistent with the decisions of other courts which have ruled in Pa......
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