V & V Cement Contractors, Inc. v. La Salle Nat. Bank

• Decision Date: 07 November 1983
• Docket Number: No. 82-2299,No. 49574 and M,49574 and M,82-2299
• Citation: 74 Ill.Dec. 934,456 N.E.2d 655,119 Ill.App.3d 154
• Parties: , 74 Ill.Dec. 934 V & V CEMENT CONTRACTORS, INC., Plaintiff-Appellee, v. LA SALLE NATIONAL BANK, as Trustee under Trusteister-Neiberg Co., Inc., an Illinois Corporation, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 655

456 N.E.2d 655

119 Ill.App.3d 154, 74 Ill.Dec. 934

V & V CEMENT CONTRACTORS, INC., Plaintiff-Appellee, v. LA SALLE NATIONAL BANK, as Trustee under Trust No. 49574 and Meister-Neiberg Co., Inc., an Illinois Corporation, Defendants-Appellants.

No. 82-2299.

Appellate Court of Illinois First District, First Division.

Nov. 7, 1983.

Frankel, McKay & Orlikoff, Chicago (Jerome Meister, Chicago, of counsel), for defendants-appellants.

Ronald N. Hominick, Hominick & Schummer, Vernon Hills, for plaintiff-appellee.

CAMPBELL, Justice:

Plaintiff, V & V Cement Contractors, Inc., brought this action against defendant, Meister-Neiberg Co., Inc. and LaSalle National Bank, to foreclose plaintiff's mechanic's lien for the construction of a concrete retaining wall under an oral contract. Following a bench trial, a decree of foreclosure and sale was entered and a lien placed on the defendant's property in the amount of $13,366.93, including interests and costs. Defendants now appeal claiming: (1) that plaintiff's mechanic's lien cannot be enforced since the improvement was constructed partially on property not owned by the defendants; (2) that the trial court erred in finding that payment under the contract was on a time and material basis rather than as a lump sum payment; and (3) that the trial court erred in denying defendants' counterclaim for damages incurred as a result of plaintiff's alleged defective performance.

The facts in this case are in dispute except for the following: In 1978 plaintiff and defendant, Meister-Neiberg, orally agreed that plaintiff would construct a concrete retaining wall on certain commercial property owned by defendant, LaSalle National Bank, as trustee. Meister-Neiberg caused the construction site to be graded and the corners of the property to be staked by a surveyor. Plaintiff constructed the retaining wall in October, 1978, providing all of the labor and material for the construction. Following construction of the retaining wall, plaintiff billed defendants $11,103.75 for the work and a dispute arose as to the cost of constructing the wall. Defendants then had the property surveyed and discovered that the retaining wall encroached on the adjacent residential property. Prior to trial a second survey of the property was conducted which showed an encroachment varying from one-third of an inch to 5.4 inches over a distance of 375 feet. It is to be noted that defendant, Meister-Neiberg, is not a stranger to the adjacent residential property. The trial court found that Meister-Neiberg was the contractor-developer of both the commercial and adjacent residential properties.

At trial, James Crouch, the foreman on the job, testified that the plaintiff was prevented from properly constructing the retaining wall due to muddy ground conditions. According to Crouch, he informed Al Neiberg, defendants' agent, that the ground was too wet and muddy to begin construction, but Neiberg insisted that plaintiff proceed with the work saying, "We got to get it done." Dennis Vito, then vice-president and superintendent of V & V, corroborated much of Crouch's testimony. Vito also testified that it was his duty to enter into contracts on behalf of plaintiff. Vito stated that when he was asked by defendant to estimate the cost of constructing the retaining wall, he gave defendant an estimate of ten to eleven thousand dollars.

Al Neiberg, president of Meister-Neiberg, testified that he was quoted a price of $7,500.00 by Dennis Vito for construction of the retaining wall. Neiberg also stated that he was never informed by Vito or Crouch that the ground conditions were too wet to begin construction.

The trial court made extensive findings including: that the parties did not agree to a fixed price for the work, that the parties did agree the work would be done on a time and material basis; that the construction site was partially under water and muddy; that plaintiff advised defendants that the area was unsuitable for construction and that the trenching equipment would likely slip; that defendants ordered plaintiff to construct the wall immediately; that the wall met its purpose as to water control and soil erosion; that no losses have been incurred due to the encroachment; and that defendants were equally responsible for the encroachment; and specifically, in paragraph 14, that "[defendants'] failure to remove and reconstruct the wall since its construction in 1978 * * * constitutes an acceptance of the retaining wall by [defendants]."

Defendants initially contend that plaintiff is not entitled to enforce its mechanic's lien since the improvement was constructed partially on property not owned by defendants. They argue that plaintiff failed to perform under the terms of the contract; that any performance by plaintiff was not substantial performance; that the contract contained an implied warranty that the wall would be constructed in a reasonably workmanlike manner; that the work was not accepted by defendants; that plaintiff has caused the defendants to trespass on adjoining property; and that the trial court's findings are against the manifest weight of the evidence.

Defendants have generally contested each and every one of the trial court's findings and have urged that the trial court's findings are against the manifest weight of the evidence. Defendants argue specifically that plaintiff failed to perform; that performance was not substantial; that the contract contained an implied warranty; and that plaintiff caused defendants to trespass on the adjacent residential property. Although a trial court's holding is always subject to review, this court will not disturb a trial court's finding and substitute its own opinion unless the holding of the trial court is manifestly against the weight of the evidence. (Schulenburg v. Signatrol, Inc. (1967), 37 Ill.2d 352, 226 N.E.2d 624.) Underlying this rule is the recognition that especially where the testimony is contradictory, the trial judge as the trier of fact is in a superior position to that of a reviewing court to observe the conduct of the witnesses while testifying to determine their credibility and to weigh the evidence accordingly. The trial court's determination will not be disturbed absent a finding that the trial court's judgment was clearly against the manifest weight of the evidence. (Schulenburg v. Signatrol, Inc.; LaSalle National Bank v. County of Cook (1957), 12 Ill.2d 40, 145 N.E.2d 65.) For a finding of fact to be against the manifest weight of evidence, an opposite conclusion must be clearly evident. Telander v. Posejpal (1981), 94 Ill.App.3d 616, 49 Ill.Dec. 590, 418 N.E.2d 444.

Defendants' principal argument is that plaintiff was never instructed by defendants to construct the wall in spite of plaintiff's warning that it was too wet to begin the work. There was, however, directly conflicting testimony presented at...