Witter v. Winter, 73--427

• Court: United States Appellate Court of Illinois
• Citation: 25 Ill.App.3d 924,323 N.E.2d 407
• Docket Number: No. 73--427,73--427
• Parties: Lowell WITTER d/b/a Aero Landscape Service, Plaintiff-Appellant, v. Tom WINTER, Dfendant-Appellee.
• Decision Date: 11 February 1975

Page 407

323 N.E.2d 407 25 Ill.App.3d 924 Lowell WITTER d/b/a Aero Landscape Service, Plaintiff-Appellant,
v.
Tom WINTER, Dfendant-Appellee. No. 73--427. Appellate Court of Illinois, Second District, First Division. Feb. 11, 1975.

[25 Ill.App.3d 925] Thomas D. Chase, Robert D. Smith, Elgin, for plaintiff-appellant.

HALLETT, Justice:

The plaintiff sued the defendant for $418.27 allegedly due for landscaping and the defendant counter-claimed for $375, contending that the job was poorly done and that he had to redo it himself. The trial court, after a bench trial, in which both parties testified, entered a judgment for the defendant on the complaint and for the counter-defendant on the counterclaim, each party to pay his own costs. The plaintiff appeals.

The defendant has not seen fit to appear as appellee or to file a brief. Where, as here, an appellee has not filed a brief in the reviewing court, it may reverse without considering the merits of the case. However, reversal is not mandatory and

Page 408

the reviewing court may, if it chooses, consider and determine the case on its merits. (2 I.L.P. Appeal and Error, ch. 10, § 560; Perez v. Janota (1969), 107 Ill.App.2d 90, 246 N.E.2d 42; Daley v. Jack's Tivoli Liquor Lounge, Inc. (1969), 118 Ill.App.2d 264--275, 254 N.E.2d 814; Lynch v. Wolverine Ins. Co. (1970), 126 Ill.App.2d 192, 193, 261 N.E.2d 466; People v. Giannopoulos (1974), 20 Ill.App.3d 338, 314 N.E.2d 237; Daley v. Los Laureles, Inc. (1974), 22 Ill.App.3d 441, 318 N.E.2d 159.) We elect to follow the latter course.

The plaintiff here contends that the court's finding against his claim is against the manifest weight of the evidence. After reviewing the evidence, we disagree and affirm the judgment.

The plaintiff testified that he and the defendant entered into an oral contract whereby the plaintiff agreed to perform certain landscaping services, which included rototilling, removing debris, final grading, fertilizing, and laying sod, on the defendant's property. The services were to be performed subject to the approval of the defendant. It is undisputed that the defendant expressed approval of the grading and leveling before[25 Ill.App.3d 926] the sod was laid. However, there is no evidence that the defendant approved of the landscaping after its completion.

The plaintiff's bid was $818.27 and the defendant had paid $400. At the trial, the testimony of the parties concerning the terms of payment of the balance conflicted....