Wick Bldg. Systems, Inc. v. Bunning

• Decision Date: 14 June 1982
• Docket Number: O-D,No. 81-470,81-470
• Citation: 437 N.E.2d 341,107 Ill.App.3d 61,62 Ill.Dec. 814
• Parties: , 62 Ill.Dec. 814 WICK BUILDING SYSTEMS, INC., Agri-Buildings Division, a Wisconsin Corporation, Plaintiff-Appellant, v. William H. BUNNING, Jr., Defendant-Appellee, and Mel-ee Builders, Inc., Defendant.
• Court: United States Appellate Court of Illinois

Page 341

437 N.E.2d 341

107 Ill.App.3d 61, 62 Ill.Dec. 814

WICK BUILDING SYSTEMS, INC., Agri-Buildings Division, a Wisconsin Corporation, Plaintiff-Appellant, v. William H. BUNNING, Jr., Defendant-Appellee and Mel-O-Dee Builders, Inc., Defendant.

No. 81-470.

Appellate Court of Illinois Third District.

June 14, 1982.

John W. Howard, Bartley, Fraser, Parkhurst, Hession & Renner, Peoria, for plaintiff-appellant.

Dean B. Rhoads, Sutkowski & Washkuhn Associates, Peoria, for defendant-appellee.

SCOTT, Justice:

Wick Building Systems, Inc. (Wick), a manufacturer of agricultural buildings, on March 28, 1978, entered into an agreement with William H. Bunning, Jr. (Bunning) whereby Bunning would be a dealer for the sale of such buildings. On August 21, 1978, Bunning assigned his dealership agreement to Mel-O-Dee Builders, Inc. (Mel-O-Dee), a business owned by Bunning. The assignment agreement contained language, the effect of which was to make Bunning a guarantor to an extent later to be determined of certain obligations. The assignment of the dealer agreement was approved of and consented to by Wick.

On June 4, 1979, Mel-O-Dee ordered from Wick a hog confinement building to be delivered to a customer. Prior to various change orders the contract price for the building was $14,926.00. Mel-O-Dee also had delivered to Wick its promissory note in the sum of $12,493.82. On March 31, 1980, the plaintiff Wick filed suit against Mel-O-Dee and Bunning for payment of the promissory note and for final payment of $12,607.50 under the June 4, 1979, contract for construction of the hog confinement building. On June 16, 1980, the circuit court of Peoria County dismissed Counts I and II of Wick's complaint for lack of jurisdiction. No appeal from the dismissal of the counts was taken. On September 25, 1980, Counts III and IV alleging that money was due to the plaintiff Wick from Bunning as guarantor of the corporate defendant Mel-O-Dee were dismissed for failure to state a cause of action, however, the court granted Wick 21 days to file an amended complaint. Wick took no further action in the case until April 7, 1981, when it filed a motion for a final judgment order. Over Bunning's objection the court on July 29, 1981, entered a final order of dismissal whereby Wick's complaint was dismissed without leave to amend. This appeal ensued.

As the issues in this appeal are addressed, the pleadings, court orders and contractual agreements will be set forth as they become pertinent.

The defendant Bunning first contends that Wick failed to file a timely appeal from the trial court's order of September 25, 1980, and that this court does not have jurisdiction to review the circuit court's dismissal of the complaint.

This jurisdictional issue is raised by the defendant Bunning in his appellee's brief and is predicated upon the argument that even though Wick was granted the right to amend its pleadings, the trial court's order of dismissal of the complaint was not grounded on technical defects, but was based on a determination that the factual allegations in the complaint were insufficient to state a cause of action as a matter of law. Bunning further argues that the dismissal order was final because Wick did not in fact amend or attempt to amend its complaint which is indicative of a conclusion that the plaintiff Wick acknowledged that the complaint could not be cured so as to state a cause of action and hence it was a final appealable order from which Wick did not file a notice of appeal within thirty days. Bunning's argument is appealing, since it is obvious that the court's order of September 25, 1980, was directed at the substantive allegations of the complaint, however, to adopt such argument would require a determination in many instances as to the basis for a trial court's order of dismissal and it is conceivable that in many instances the picture could be a cloudy one. The better and correct rule to apply is that an order of dismissal followed by an election to stand on the complaint is not a final appealable order until a subsequent order dismissing the suit is entered. This is true even if the time granting leave to amend the complaint has run. See Martin v. Marks (1980), 80 Ill.App.3d 915, 36 Ill.Dec. 291, 400 N.E.2d 711. We reject Bunning's argument and hold that this court does have jurisdiction of this appeal.

Wick further asserts that the trial court incorrectly dismissed Counts III and IV of its complaint on the grounds that they failed to state a cause of action.

Counts III and IV of the complaint, which sought liability from Bunning, were predicated upon language contained in paragraph 8 of the Dealer Agreement and paragraph 3 of the Assignment Agreement from Bunning to Mel-O-Dee.

Paragraph 8 of the Dealer Agreement provides as follows:

"Erection and Payment. Dealer shall coordinate erection details between Manufacturer and customer, and between any other tradesmen hired by customer, to assure the orderly and prompt completion of Wick Agri-Buildings. Dealer understands that unless otherwise specifically and expressly agreed, the purchase price shall be paid as set forth in the customer's purchase order as accepted by Manufacturer.

Dealer shall be responsible for collection of the purchase price of the Wick Agri-Building produce from customer within the times provided therefore, and shall promptly forward any and all payments upon receipt. All checks and drafts shall be made directly payable to Wick Agri-Buildings Division of Wick Building Systems, Inc.

It shall be the responsibility of Dealer to secure customers for Manufacturer which are financially solvent, and to aid and assist customers as necessary in obtaining of necessary mortgage loan financing. (It is not anticipated nor intended by this provision that Dealer should become an 'arranger of financing' or 'arranger of credit' as those or similar terms are defined by applicable Trust-In-Lending laws.)

Accordingly, in the event customer shall fail, or be unable to pay the full purchase price to Manufacturer, through no fault or neglect on the part of the Manufacturer, and if Manufacturer shall have diligently pursued available lien remedies, then Dealer shall, and hereby does agree to, indemnify, and save harmless Manufacturer, and shall thereupon pay to Manufacturer, the balance of the purchase price of said Wick Agri-Buildings product, less Dealer's Commission. Upon receipt of said payment, Manufacturer shall assign to Dealer, Manufacturer's claim, and all causes of action thereunder, against customer with respect to said Wick Agri-Buildings product."

Paragraph 3 of the Assignment Agreement provides as follows:

"Assignor is and agrees to remain personally liable and responsible to Manufacturer for the full and complete performance of all the duties, responsibilities, and obligations of Dealer under said Agreement, notwithstanding this Assignment, and agrees to and hereby does indemnify, defend, and save Manufacturer harmless with respect to all of the indemnities on the part of Dealer therein contained."

The defendant Bunning argued before the trial court that an interpretation of the above provisions imposes upon him liability as a guarantor to plaintiff Wick of the obligations of third party customers of Wick. Stated conversely, Bunning argued that any obligation which was the result of a direct purchase by Mel-O-Dee (Dealer, by virtue of the Assignment Agreement) from Wick (manufacturer) is not an obligation under the Assignment Agreement for which he (Bunning) is personally liable. The trial court agreed with Bunning's interpretation and granted Bunning's motion to dismiss.

This court now has the duty of determining whether the trial court was correct in construing the Dealer Agreement and Assignment Agreement. In approaching that task we note that neither Wick nor Bunning claim that the agreements are ambiguous, however, they are poles apart as to what they believe to be the proper construction of the agreements. In construing the documents involved, we first direct our attention to paragraph 3 of the Assignment Agreement. An examination of this paragraph discloses that by the language therein Bunning assumed personal liability to Wick for complete performance of all duties, responsibilities and obligations of Mel-O-Dee under the Dealer Agreement. By the Assignment Agreement Mel-O-Dee took Bunning's place as a dealer of Wick, however, by the language of paragraph 3 of the Assignment, he remained obligated to continue to fulfill certain duties placed upon him when he was granted a dealership by Wick. To determine the scope of the obligations imposed upon Bunning by the Assignment, an examination must be made of the Dealer Agreement.

In ascertaining the meaning of certain...