Watson Lumber Co. v. Mouser, 74-50

• Citation: 333 N.E.2d 19,30 Ill.App.3d 100
• Decision Date: 10 July 1975
• Docket Number: No. 74-50,74-50
• Parties: WATSON LUMBER COMPANY, Plaintiff, v. Lloyd MOUSER et al., Defendants-Appellees, and Leo Kamadulski et al., Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 19

333 N.E.2d 19 30 Ill.App.3d 100 WATSON LUMBER COMPANY, Plaintiff,
v.
Lloyd MOUSER et al., Defendants-Appellees,
and
Leo Kamadulski et al., Defendants-Appellants. No. 74-50. Appellate Court of Illinois, Fifth District. July 10, 1975.

Page 21

[30 Ill.App.3d 101] Lueders, Robertson & Konzen by Irvin C. Slate, Jr., Granite City, for defendants-appellants.

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Dailey & Walker, Granite City, for defendants-appellees.

EBERSPACHER, Justice.

This cause is an appeal by the defendant-purchasers, Leo Kamadulski and Fannie Kamadulski, from a portion of an order entered by the circuit court of Madison County denying the relief requested by plaintiff's, Watson Lumber Company's complaint, granting the 'cross complaint' (sic) of the defendant-contractor, Lloyd Mouser, against the defendant-purchasers and defendant-sellers, Charles Klann and Clara Klann, and denying the amended counter-claim of the defendant-purchasers against the defendant-contractor.

The following facts are undisputed. The defendant-sellers, Klann (hereinafter[30 Ill.App.3d 102] referred to as 'sellers'), contracted to sell an unimproved parcel of real estate to the defendant-purchasers, Kamadulski (hereinafter referred to as 'purchasers'). The purchasers entered into an oral contract for the construction of a house on this parcel with the defendant-contractor, Mouser (hereinafter referred to as 'contractor'). The contractor began construction of the house, however, he left the project prior to its completion. The house was completed by the purchasers. The purchasers paid the contractor $5000 in cash and the contractor gave the purchasers a credit on the contract price in the amount of $11,896.25 for work performed for contractor by purchasers (including a prior judgment for work performed). After the house was completed the plaintiff, Watson Lumber Company, from whom the contractor and purchasers had purchased much of the material used in construction of the house, filed a materialman's lien against the contractor and the purchasers.

Subsequently, plaintiff filed suit to foreclose the materialman's lien. The plaintiff named as defendants the purchasers, the sellers, and the contractor. The purchasers and the sellers each filed an answer to the plaintiff's action and a counterclaim against the contractor for indemnification. The contractor filed an answer and, in addition, filed a pleading entitled 'Cross-Complaint' against the purchasers and the sellers on the oral contract for construction of the house. The purchasers and the sellers each filed an answer to 'Cross-Complaint' of the contractor. The purchasers, alone, filed an amended counterclaim against the contractor for damages caused by his alleged breach of the oral construction contract. The contractor answered the purchasers amended counterclaim and in his 'Reply to the Answer to Cross-Complaint' denied 'each and every affirmative allegation set forth' in the sellers and the purchasers answer to his 'Cross-Complaint.'

The trial court was then called upon to hear evidence and arguments concerning each of the aforementioned pleadings. At the close of the plaintiff's case, the trial court entertained and granted the purchasers' and the sellers' motion for a directed verdict with respect to the plaintiff's foreclosure action. No appeal has been perfected from this order. After the trial court heard the arguments and received the evidence proffered by each of the defendants, it entered a 'Decree' finding: (1) that the contractor was indebted to the plaintiff in the amount of $5234.74 for materials used in the construction of the house; (2) that the purchasers owed the contractor $28,025 on the oral contract and $5,749.78 for 'extras' on the contract, less a credit to the purchasers of $24,055.30, leaving a balance due of $9,719.48; (3) that the purchasers 'should take nothing by their Amended Counterclaim'; and (4) that the contractor was entitled to a mechanic's lien on the property to the extent of $9,719.48. In the second portion of its 'Decree' the trial court ordered: (1) that the purchasers pay the contractor the sum of $9,719.48; (2) that in the [30 Ill.App.3d 103] event such payment was not made, the properly should be sold at public auction; (3) that the contractor should be paid from the proceeds of such sale; and (4) that the contractor pay the plaintiff $5,234.74 out of the monies

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he was to receive from the purchasers. While the trial court did not enter any specific findings or orders on the sellers' counterclaim or on the contractor's 'Cross-Complaint' (sic) against the sellers, the effect of those portions of the 'Decree' ordering the property sold if the purchasers failed to comply with the order to pay the contractor was to rule against the sellers because they owned the underlying fee subject to their contract for sale with the purchasers.

A notice of appeal was filed in the trial court by the plaintiff, however, the record discloses that the plaintiff has failed to take any action to further pursue such appeal. A notice of appeal was also filed by the purchasers. This appeal only concerned those portions of the trial court's 'Decree' which were entered to the detriment of the purchasers. It is this appeal that is presently before this Court.

No question is raised on the pleadings on this appeal. We note, however, that there is no pleading in Illinois properly denominated a 'Cross-Complaint.' (Ill.Rev.Stat., ch. 110, par. 38(1).)

The first issue to be resolved on this appeal concerns the question of what, if any, liabilities exist under the terms of the building construction contract between the contractor and the purchasers. Both the contractor and the purchasers agree that they entered into an oral contract for the construction of purchasers' house. Nor is there any dispute that oral contracts between parties are valid in Illinois provided, as in the instant case, they are not barred by the Statute of Frauds. (Case International v. American Nat. Bank Trust Co., 18 Ill.App.3d 297, 309 N.E.2d 750; Morris v. Anderson, 121 Ill.App.2d 169, 259 N.E.2d 601; C. Iber & Sons, Inc. v. Grimmett, 108 Ill.App.2d 443, 248 N.E.2d 131.) It is, instead, the terms of this oral contract that the parties dispute. In the instant case the contractor alleges that in addition to the oral terms of the contract there were written plans and specifications, in the form of blueprints and amended blueprints of another house, which were incorporated into this contract. Notwithstanding this incorporation, if true, in Illinois such a contract partly in writing and partly in parol is considered to be an oral contract. Railway P. & F. Conductors Mut. Aid & Ben. Ass'n v. Loomis, 142 Ill. 560, 32 N.E. 424; Bank of Marion v. Robert 'Chick' Fritz, Inc., 9 Ill.App.3d 102, 291 N.E.2d 836; Wielander v. Henich, 64 Ill.App.2d 228, 211 N.E.2d 775; Bertlee Co. v. Illinois Publishing and Printing Co., 320 Ill.App. 490, 52 N.E.2d 47.

The contractor testified that the agreed contract price was $29,500 while the purchasers...