Wielander v. Henich

• Decision Date: 28 October 1965
• Docket Number: Gen. No. 49917
• Citation: 64 Ill.App.2d 228,211 N.E.2d 775
• Parties: Elmer WIELANDER, Plaintiff and Appellant, v. N. HENICH, d/b/a A. Aball Roofing and Hardware Co., Defendant and Appellee.
• Court: United States Appellate Court of Illinois

Page 775

211 N.E.2d 775

64 Ill.App.2d 228

Elmer WIELANDER, Plaintiff and Appellant, v. N. HENICH, d/b/a A. Aball Roofing and Hardware Co. Defendant and Appellee.

Gen. No. 49917.

Appellate Court of Illinois, First District, Third Division.

Oct. 28, 1965.

Frank J. Toman, Berwyn, for appellant.

No appearance for appellee.

SULLIVAN, Justice.

Plaintiff, Elmer Wielander, owner of premises at 1415 South Harlem Avenue, Berwyn, Illinois, brought suit against the defendant, N. Henich, d/b/a A. Aball Roofing and Hardware Co., upon a five-year guarantee written in an estimate submitted by the defendant to the 'Owner of Property' at 1417 So. Harlem Avenue. The estimate was for roof repair work to be done by the defendant, and specified the type of work, but did not mention upon which particular property the work was to be done. The estimate was not signed by anyone, but was written on the stationery of the defendant. Further, the year when the estimate was given cannot be ascertained from the instrument since it was filled out as 'November 15, 195----.'

Plaintiff, in his amended statement of claim, claimed that this estimate constituted an agreement between himself and the defendant, entered into in the year 1955, and that the work was to be done on the premises owned by the plaintiff at 1415 S. Harlem Avenue, Berwyn, Illionis. Plaintiff alleged that the work was done by the defendant in an improper manner, that the roof leaked, and that water entered his premises damaging the interior of the building in the amount of $1,000.00. Plaintiff did not allege when the leak occurred, either before the work was done, after it was done and within the five-year guarantee period, or after the five-year guarantee period expired.

The suit was commenced by the plaintiff on November 4, 1963. The defendant filed a motion to strike the claim on the grounds that the action was barred by the five-year statute of limitations pertaining to oral contracts. The trial court sustained this motion, dismissed the cause, and gave judgment for the defendant. The plaintiff appeals from that order.

The relevant portions of the estimate, which plaintiff contends constitutes the agreement between himself and the defendant, are as follows:

'A. Aball Roofing & Hardware Co. 3925 W. Roosevelt Road

* * *

* * *

Chicago 24, Ill. November 15, 195

TO Owner of Property

1417 So. Harlem Ave.

Estimet (sic)'

Then follows a description of the work, and the instrument ends with:

'and gurantted (sic) for 5 years.'

The contract was not signed by either of the parties.

The only question presented here is whether plaintiff's action is barred by the five-year statute of limitations pertaining to oral contracts. That statute provides: '* * * actions on unwritten contracts, expressed or implied, * * * shall be commenced within 5 years next after the cause of action accrued.' Ill.Rev.Stat.1963, chap. 83, par. 16.

Though the exact year when this estimate was given cannot be ascertained from the face of the instrument itself, plaintiff alleges that it was given in 1955. He contends that since this is a written contract the ten year statute of limitations pertaining to written contracts applies, (Ill.Rev.Stat.1963, chap. 83, par. 17) and therefore the suit was commenced within the proper time limit.

We do not agree with the plaintiff. Several reasons lead us to conclude that since parol testimony must be used to make the agreement complete, it is at best an oral contract and the suit is barred by the fiveyear statute of limitations.

The pertinent law on agreements such as the instant one, is: 'A written contract is one, which, in all its terms, is in writing. A contract partly in writing and partly oral is, in legal effect, an oral contract.' Bishop on Contracts, secs. 163, 164. 'If it be true that the agreement, as set forth in writing, is so indefinite as to necessitate resort to parol testimony to make it complete, the law is that in applying the statute of limitations it must be treated as an oral contract. Both reason and authority support this view.' Plumb v. Campbell, 129 Ill. 101, 18 N.E. 790.

This estimate merely reads 'Owner of Property' and nowhere on its face does it mention the plaintiff by name. Not only must parol evidence be introduced to show that the plaintiff was the party with whom the agreement was entered into, but also that plaintiff was the owner of the property at 1417 So. Harlem at that time.

The case of Railway Passenger and Freight Conductors' Mutual Aid and Benefit Association v. Loomis, 142 Ill. 560, 32 N.E. 424, concerned an action by a widow to recover benefits under the bylaws of a mutual aid society. The action was brought after five years and within ten years after the action accrued, and one of the issues was whether it was barred by the five-year statute of limitations pertaining to oral contracts. The plaintiff's deceased husband was a member of the society, but the bylaws merely provided for 'widows' to be paid a specific sum. The court said that this was not a contract in writing with the widow, as parol evidence was necessary to show that the deceased left a widow, and that the party seeking its enforcement was his widow.

On page 567, 32 N.E. p. 426 of the opinion the court said: 'A contract cannot be said to be in writing unless the parties thereto, as well as the terms and provisions thereof, can be ascertained from the instrument itself. If the party to a written contract is not named therein, the contract is defective, as containing only a part of the agreement. In such case the agreement is only partly reduced to writing, because parol evidence must be resorted to in order to show with whom the bargain was made.' (Citing cases.)

The court went on to conclude that since the plaintiff was not named as a party in the certificate of membership and constitution and bylaws, the contract was an oral one and governed by the statute of limitations pertaining to oral contracts.

By analogy to the instant case, the Loomis case, supra, shows that a contract is oral if parol evidence is needed to show who is a party to a written contract. The estimate does not name the plaintiff as a party thereto, and oral evidence is needed not only to show that he was the party with whom the agreement was entered into, but also that he was the owner of the property at...