W.Q. O'Neall Co. of Illinois v. Coon Run Drainage & Levee Dist. of Morgan & Scott Counties

• Decision Date: 27 May 1943
• Docket Number: Gen. No. 9381.
• Citation: 49 N.E.2d 283,319 Ill.App. 324
• Parties: W. Q. O'NEALL CO. OF ILLINOIS v. COON RUN DRAINAGE AND LEVEE DIST. OF MORGAN AND SCOTT COUNTIES.
• Court: United States Appellate Court of Illinois

319 Ill.App. 324

49 N.E.2d 283

W. Q. O'NEALL CO. OF ILLINOIS

v.COON RUN DRAINAGE AND LEVEE DIST. OF MORGAN AND SCOTT COUNTIES.

Gen. No. 9381.

Appellate Court of Illinois, Third District.

May 27, 1943.

Appeal from Circuit Court, Morgan County; Walter W. Wright, Judge.

Action by the W. Q. O'Neall Company of Illinois against the Coon Run Drainage and Levee District of the Counties of Morgan and Scott for the contract price or market value of materials sold to defendant. From orders denying plaintiff's motion, and granting defendant's motion, for judgment on the pleadings, and a judgment for defendant on the pleadings, plaintiff appeals.

Affirmed. Epler C. Mills, of Virginia, and Myron E. Mills, of Springfield, for appellant.

Vaught, Foreman & Cleary and Hugh Green, all of Jacksonville, for appellee.

RIESS, Presiding Justice.

The plaintiff company filed a suit at law in the Circuit Court of Morgan County against the defendant drainage and levee district, seeking recovery of the alleged contract price or market value of certain materials alleged to have been lawfully sold and delivered to the defendant district and used by it in the construction and repair of certain improvements in the nature of drains or sluiceways of alleged benefit to the defendant district and the lands located therein. Answer to the complaint as finally amended and praying legal or equitable relief was filed by the defendant district denying liability and pleading two special defenses, the first of which was a plea of res judicata, which was stricken by the Court on plaintiff's motion and reply. No evidence was offered by either party. Plaintiff moved for judgment on the pleadings which motion was denied. Defendant also moved for judgment on the pleadings in bar of suit and for costs under its remaining defenses which motion was granted and judgment was so entered. The plaintiff company has perfected an appeal from the above rulings and judgment to this Court and assigns error thereon.

The complaint, filed on December 27, 1940, charged in substance that plaintiff, the W. Q. O'Neall Company was an Illinois corporation; that defendant Coon Run Drainage and Levee District of Morgan and Scott Counties, Illinois, is a public or municipal corporation organized in 1899 under certain cited levee and drainage acts approved May 29, 1879, as amended; Drainage, Chap. 42, Ill.Rev.Stats.1941; that on or about January 21, 1937, defendant district was about to construct certain improvements and make repairs pursuant to plans and profiles therefor, as prepared in connection with certain extensive improvements proposed to be made by the War Department of the United States and the Department of Public Works and Buildings of the State of Illinois; that on January 21, 1937, in order to carry out the work so specified, said district, by its commissioners agreed in writing, signed by the chairman, to purchase from plaintiff certain materials and supplies at stipulated unit prices, which purported memorandum agreement or signed order was dated December 30, 1936, and is set forth verbatim in paragraph 4 of the complaint and in “Exhibit I” thereto; that said merchandise was to be delivered to defendant at Bluffs, Illinois, its officers to notify plaintiff from time to time what portion thereof to deliver; that at defendant's request plaintiff sold and delivered the specified materials and items on the respective dates set forth in paragraph 5 of the complaint; that said material complied with said specifications, was received and is now being used by defendant as part of said works and improvements and was thereby ratified by the defendant, to the benefit of said drainage district and lands, of a total value, less materials returned, of $4,255.11, for which amount demand was made, defendant refused payment and judgment was prayed by plaintiff under its alleged executed contract or in quantum meruit.

Among the exhibits attached to the amended complaint were three delivery receipts and one final letter, all of different dates, covering delivery and certain return credits of items of such material or merchandise. A bill of particulars alleging certain “oral parts of agreement” with defendant's commissioners was filed by the plaintiff. The second and third counts of the original complaint were dismissed without prejudice on plaintiff's motion and the defendant commissioners who had been named and joined as individual defendants were dismissed from the suit.

Defendant's motion to dismiss the original complaint averred in substance that the district and commissioners possessed only such limited powers and authority to enter into contracts, make improvements and levy assessments as were expressly conferred by statute or necessarily implied under the applicable sections of said Drainage Act; that the complaint wholly failed to allege and set forth that proper and necessary legal steps were taken to authorize and empower the commissioners of the district to enter into the alleged contract for purchase of materials and failed to show compliance with various provisions and requirements of Section 36 of said Act as specifically recited in the motion, which steps and proceedings were averred to be necessary to authorize such proposed improvement or any purported contract or additional assessment levy to pay the cost of same; or of the filing of a proper petition followed by due hearing and order of approval of such proposed improvement by the County Court; or of advertising and letting of a contract therefor to the lowest responsible bidder as required by Section 36 of said Act; wherefore said purported contract and alleged demand was “ultra vires” and void. This motion was heard and granted by the Court, and by leave, the complaint was then amended in substance to include allegations of the filing of a petition for special assessments, hearing thereon and order of approval thereof by the County Court of Morgan County on August 5, 1937, authorizing such proposed improvement pursuant to plans prepared by the War Department, and by also adding paragraph 9 to said count one, which latter amendment, after repeating certain preceding paragraphs, recites that the defendant, at its request, received, used and retained said material, goods and merchandise, for its own benefit in the repair and protection of the work of the district as provided in Section 37 of said Drainage Act and alleged that said material is now being so used as a part of said work and improvements to the increased benefit and protection of the district and the lands comprising the same, and prayed recovery under a “quantum meruit” claim for the value thereof. The complaint, as amended, also prayed for equitable relief predicated upon the performance and acceptance of the benefits of the alleged contract and estoppel to deny liability therefor.

Defendant filed a motion to dismiss the amended complaint, which motion was withdrawn by leave of Court, and its answer and special defenses were then filed. The answer denied the validity of the alleged contract and right of recovery thereunder or in quantum meruit, averring in substance the same grounds that were set forth in its first motion to dismiss. For special defenses, including new matter set forth therein, it was averred that a petition was filed by the Drainage Commissioners of said District on July 20, 1937, in the County Court of Morgan County for an extensive system of new improvements to be paid for by additional special assessments against the lands of said District, according to certain plans, specifications, profiles and engineer's estimates of cost thereof made by and in connection with the Federal and State governments as referred to in the amended complaint, involving an estimated expenditure by the Federal government of $187,000 and of $28,822 to be paid for by said district by special assessments against the real estate located therein, copies of which plans for such improvements under said purported contract between the District and said Federal and State governmental agencies are specifically set forth, together with copies of the petition, plans, specifications and estimates which were attached as exhibits to defendant's special pleas. There was also averred, and set forth as exhibits to said pleas, copies of all orders and proceedings of the County Court in relation thereto, including the hearing on said petition after due notice and order of Court allowing said petition on August 5, 1937. The said petition, specifications, estimates and order set forth in detail the said proposed improvements in six itemized “divisions” for which such special assessments were sought, including “Division V”, which set forth the various specified materials consisting of corrugated metal pipes of specified size and construction, metal gates, fittings and attachments designated for use in “The construction of sluiceways at the location, as follows”: at unit prices therein recited, for use under a new levee to be built on lands to be acquired therefor, as set forth in other “Divisions” and integral parts of said proposed improvement, which were not therein listed as repairs or current annual expenses for the protection of said district under Section 37 of the Drainage and Levee Act. The petition also prayed for an additional annual assessment of $1000 to be used for current repairs and protection of the works of said district, which current expenses, because of such additional improvements, would be increased from $714 to $1000 per annum and also set forth that the funds of said district had been exhausted.

It was further averred that subsequent to the entry of said order of Court, no assessment roll was either filed or confirmed in said...