{ "id": 477538, "name": "J&B STEEL CONTRACTORS, INC., d/b/a J&B Steel Reinforcing and Erection, Appellee, v. C. IBER & SONS, INC., et al., Appellants", "name_abbreviation": "J&B Steel Contractors, Inc. v. C. Iber & Sons, Inc.", "decision_date": "1994-10-20", "docket_number": "No. 76070", "first_page": "265", "last_page": "282", "citations": [ { "type": "official", "cite": "162 Ill. 2d 265" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "220 Ill. App. 3d 130", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5274784 ], "pin_cites": [ { "page": "151-52" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/220/0130-01" ] }, { "cite": "34 Ill. App. 3d 929", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2964555 ], "weight": 3, "pin_cites": [ { "page": "934" }, { "page": "933" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/34/0929-01" ] }, { "cite": "367 Ill. 360", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2577314 ], "pin_cites": [ { "page": "371" } ], "opinion_index": 0, "case_paths": [ "/ill/367/0360-01" ] }, { "cite": "234 Ill. App. 3d 1027", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5188458 ], "weight": 2, "pin_cites": [ { "page": "1033" }, { "page": "1033" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/234/1027-01" ] }, { "cite": "109 Ill. 2d 225", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3126588 ], "pin_cites": [ { "page": "230, 232" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/109/0225-01" ] }, { "cite": "74 A.L.R.3d 187", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "weight": 9, "year": 1976, "pin_cites": [ { "page": "200-01" }, { "page": "201" }, { "page": "215-16" }, { "page": "215" }, { "page": "215" }, { "page": "215" }, { "page": "215" }, { "page": "215" } ], "opinion_index": 0 }, { "cite": "68 N.W. 854", "category": "reporters:state_regional", "reporter": "N.W.", "pin_cites": [ { "page": "855" } ], "opinion_index": 0 }, { "cite": "66 Minn. 154", "category": "reporters:state", "reporter": "Minn.", "pin_cites": [ { "page": "156" } ], "opinion_index": 0 }, { "cite": "94 Ill. 475", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2727422 ], "year": 1913, "opinion_index": 0, "case_paths": [ "/ill/94/0475-01" ] }, { "cite": "242 Ill. 88", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5654748 ], "year": 1880, "opinion_index": 0, "case_paths": [ "/ill/242/0088-01" ] }, { "cite": "73 Ill. 318", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5317337 ], "opinion_index": 0, "case_paths": [ "/ill/73/0318-01" ] }, { "cite": "208 Ill. 218", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3298833 ], "year": 1874, "pin_cites": [ { "page": "226" } ], "opinion_index": 0, "case_paths": [ "/ill/208/0218-01" ] }, { "cite": "301 Ill. 102", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5015377 ], "weight": 3, "year": 1904, "pin_cites": [ { "page": "106" }, { "page": "106" }, { "page": "106", "parenthetical": "noting that if a writing shows itself to be a complete expression, parol evidence cannot be admitted to add another term, though the writing may contain nothing regarding it particularly" } ], "opinion_index": 0, "case_paths": [ "/ill/301/0102-01" ] }, { "cite": "149 Ill. App. 3d 88", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3461817 ], "pin_cites": [ { "page": "93" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/149/0088-01" ] }, { "cite": "94 Ill. App. 3d 562", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3125623 ], "pin_cites": [ { "page": "581" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/94/0562-01" ] }, { "cite": "229 Ill. App. 3d 41", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5216947 ], "pin_cites": [ { "page": "45" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/229/0041-01" ] }, { "cite": "19 Ill. App. 3d 579", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2693044 ], "pin_cites": [ { "page": "582" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/19/0579-01" ] }, { "cite": "94 Ill. App. 3d 57", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3128850 ], "year": 1974, "pin_cites": [ { "page": "63" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/94/0057-01" ] }, { "cite": "207 Ill. App. 3d 315", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2553152 ], "pin_cites": [ { "page": "326" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/207/0315-01" ] }, { "cite": "59 Ill. 2d 491", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2958904 ], "pin_cites": [ { "page": "495-96" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/59/0491-01" ] }, { "cite": "380 Ill. 283", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2554398 ], "pin_cites": [ { "page": "290" } ], "opinion_index": 0, "case_paths": [ "/ill/380/0283-01" ] }, { "cite": "41 Ill. 2d 236", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2853699 ], "year": 1942, "pin_cites": [ { "page": "242" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/41/0236-01" ] }, { "cite": "74 Ill. 2d 379", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2994217 ], "year": 1968, "pin_cites": [ { "page": "386" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/74/0379-01" ] }, { "cite": "246 Ill. App. 3d 523", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5388315 ], "weight": 9, "pin_cites": [ { "page": "529" }, { "page": "529" }, { "page": "529" }, { "page": "529" }, { "page": "529-31" }, { "page": "528" }, { "page": "529-30" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/246/0523-01" ] } ], "analysis": { "cardinality": 1107, "char_count": 27649, "ocr_confidence": 0.795, "pagerank": { "raw": 2.98158927107286e-07, "percentile": 0.8510496171784533 }, "sha256": "43303261456c74866704db94069a06303b6989e7e6dcf22965c7d08772d34fed", "simhash": "1:eaff47227c92647a", "word_count": 4506 }, "last_updated": "2023-07-14T18:06:53.383582+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "J&B STEEL CONTRACTORS, INC., d/b/a J&B Steel Reinforcing and Erection, Appellee, v. C. IBER & SONS, INC., et al., Appellants." ], "opinions": [ { "text": "JUSTICE FREEMAN\ndelivered the opinion of the court:\nThe issues raised in this case turn on whether evidence beyond a writing itself may be considered in determining its completeness for purposes of the parol evidence rule.\nBACKGROUND\nThe question arises from a suit filed in the circuit court of Peoria County by J&B Steel Contractors, Inc. (J&B), a subcontracting firm, against C. Iber & Sons, Inc. (Iber), a general contractor. The suit sought foreclosure of a mechanics\u2019 lien as well as other relief in connection with the construction of a parking garage for Proctor Community Hospital in Peoria. In each of the four counts, J&B alleged that, through Iber\u2019s fault, J&B was precluded from completing its work on the date scheduled at the anticipated cost. J&B attached as an exhibit to the complaint a writing in the form of a numbered purchase order, dated December 7, 1989, executed by Iber, pertaining to the work to be done. The purchase order set forth the price of J&B\u2019s performance, $220,799, but did not specify a completion date.\nJ&B alleged, however, that the purchase order merely confirmed understandings reached by representatives of it and Iber in a telephone conversation three days earlier. In fact, the order directed that it be \u201center[ed]\u201d by J&B \u201cin accordance with the terms and conditions of\u201d the \u201ctelephone proposal on 12/4/89.\u201d Those terms and conditions, J&B alleged, included the understanding that, at the stated price, it was not obligated to perform work beyond July 31, 1990. The only reference to that date in the purchase order is one specifying it as the date through which J&B was to supply a foreman experienced in the nature of the subcontract.\nIber successfully moved to dismiss the suit pursuant to section 2 \u2014 615 of the Code of Civil Procedure (see Ill. Rev. Stat. 1991, ch. 110, par. 2 \u2014 615), but the appellate court reversed and remanded for further considerations (246 Ill. App. 3d 523).\nThe court reasoned that no finding had been made that the purchase order stated the entirety of the parties\u2019 understandings. (246 Ill. App. 3d at 529.) Were the purchase order such a complete statement, or total integration, the allegations relating to the telephone proposal would be rendered meaningless by the parol evidence rule. (246 Ill. App. 3d at 529.) That rule generally precludes evidence of understandings, not reflected in a writing, reached before or at the time of its execution which would vary or modify its terms.\nThe court directed the trial judge on remand to look not only at, but beyond, the purchase order itself to answer the integration question. (246 Ill. App. 3d at 529.) It outlined a procedure for doing so, borrowing considerations attendant motions for summary judgment. (246 Ill. App. 3d at 529.) Remaining issues were answered conditioned on the trial judge\u2019s finding that July 31, 1990, was the date after which J&B was not obligated to perform at the cost stated in the purchase order. 246 Ill. App. 3d at 529-31.\nWe allowed Iber\u2019s petition for leave to appeal. (134 Ill. 2d R. 315.) We agree with the appellate court\u2019s conclusion that the complaint should not have been dismissed. But we must reject most of the analysis employed as well as the considerations the appellate court directed the trial judge to follow on remand. We therefore affirm but do so for other reasons.\nDISCUSSION\nIber raises, as a threshold matter, the notion that the appellate court should not have addressed the question of integration because the parties neither briefed nor argued it. Iber points to the rule, especially applicable where reversal of a trial court judgment is urged, limiting review to the issues actually raised. See Saldana v. Wirtz Cartage Co. (1978), 74 Ill. 2d 379, 386; Flynn v. Vancil (1968), 41 Ill. 2d 236, 242; Seifert v. Demaree (1942), 380 Ill. 283, 290.\nThe argument assumes that there is reason to honor the rule on de novo review of a section 2 \u2014 615 dismissal. (But see Sparling v. Peabody Coal Co. (1974), 59 Ill. 2d 491, 495-96 (noting, generally, that no judgment based on an erroneous legal theory can be allowed to stand).) But whether the argument\u2019s premise is valid is of no immediate concern \u2014 the argument fails for an even more fundamental reason.\nIber did not assert in the appellate court that the purchase order stood as the complete agreement of the parties. Iber did, however, argue for application of the parol evidence rule. Again, the rule would render inconsequential the crucial allegations as to the telephone proposal. Any assessment of the rule\u2019s application would hinge on a preliminary determination that the purchase order was a complete integration. (See, e.g., Oldenburg v. Hagemann (1991), 207 Ill. App. 3d 315, 326.) In short, Iber\u2019s argument was the very reason for the appellate court\u2019s analysis.\nIntegration\nThe appellate court premised its analysis on what it determined was \"a split of authority\u201d in this State as to the question of integration. (246 Ill. App. 3d at 528.) Our appellate court has, indeed, reached different conclusions as to whether integration is a factual or legal question and whether it is to be answered against only the subject writing. (246 Ill. App. 3d at 528 (citing Pecora v. Szabo (1981), 94 Ill. App. 3d 57, 63, and Storybook Homes, Inc. v. Carlson (1974), 19 Ill. App. 3d 579, 582 (considering the question a legal one to be determined from the writing alone)); Geoquest Productions, Ltd. v. Embassy Home Entertainment (1992), 229 Ill. App. 3d 41, 45 (agreeing that the question is a legal one but holding evidence beyond the writing permissible); Maas v. Board of Trustees of Community College District No. 529 (1981), 94 Ill. App. 3d 562, 581 (agreeing that evidence beyond the writing is permissible but deeming the question a factual one); see also Lewis v. Loyola University (1986), 149 Ill. App. 3d 88, 93 (citing Maas v. Board of Trustees of Community College District No. 529 for the rule that extrinsic evidence is permissible but indicating nothing as to the nature of the question as factual or legal).) But, in fact, no \"split of authority\u201d exists.\nThe rule in cases not governed by the Uniform Commercial Code (UCC) is that only the subject writing may be considered to determine the integration question. That has been the rule since this court last considered the issue in 1921 in Armstrong Paint & Varnish Works v. Continental Can Co. (1921), 301 Ill. 102, 106. It remains the standard this State\u2019s trial and appellate courts are bound to apply in cases where the UCC does not operate. See also Telluride Power Transmission Co. v. Crane Co. (1904), 208 Ill. 218, 226; Orr v. Ward (1874), 73 Ill. 318.\nArmstrong followed the \"better view\u201d recognized in Burr W. Jones\u2019 treatise on evidence. (Armstrong, 301 Ill. at 106, citing 3 Jones\u2019 Commentaries on Evidence \u00a7\u00a7 434, 453 (1913); see 3 Jones\u2019 Commentaries on Evidence \u00a7 440, at 182-83 (1913) (stating that \"according to the better view the only criterion of the completeness of the written contract as a full expression of the agreement of the parties is the writing itself\u2019).) It overruled, sub silentio, cases such as Fuchs & Lang Manufacturing Co. v. R.J. Kittredge & Co. (1909), 242 Ill. 88, and Ruff v. Jarrett (1880), 94 Ill. 475, which indicated it was permissible to consider circumstances beyond the subject writing. See also 3 Jones\u2019 Commentaries on Evidence \u00a7 440, at 184-85 (1913), citing Wheaton Roller-Mill Co. v. John T. Noye Manufacturing Co. (1896), 66 Minn. 154, 156, 68 N.W. 854, 855 (allowing extrinsic evidence to show \"the circumstances under which and the purposes for which [a] writing was executed\u201d).\nThe question raised by the parties here is whether the rule of Armstrong should remain viable. The more modern approach favors liberalizing the admission of evidence to determine the integration question. (See J. Calamari & J. Perillo, Contracts \u00a7 3 \u2014 3, at 111 (2d ed. 1977).) Such is the approach of the Restatement of Contracts as well as the UCC. See Restatement (Second) of Contracts \u00a7 214 (1979); see also Restatement (Second) of Contracts \u00a7 214, Comment, at 133 (1979); see Ill. Rev. Stat. 1989, ch. 26, par. 2 \u2014 202; see J. Calamari & J. Perillo, Contracts \u00a7 3 \u2014 7, at 114 \u2014 6 (2d ed. 1977).\nThrough adoption of the UCC in 1961, the liberalized approach is also followed in this State, but, as alluded to earlier, only in cases governed by the UCC. That approach cannot be reconciled with the rule of Armstrong, which remains applicable in Illinois in all other instances, including cases such as this. But though concern is raised as to the worth of continued adherence to that rule, this case provides no cause to break from it; the purchase order alone answers the issue of integration. Extrinsic evidence is unnecessary to that determination. And, so long as the rule of Armstrong remains applicable, a writing\u2019s completeness as measured against it remains a legal question to be determined by the trial judge. .(See J. Calamari & J. Perillo, Contracts \u00a7 3 \u2014 2, at 103 (2d ed. 1977).) Consequently, given de novo review of the dismissal in this case, there is no reason to outline any procedure to follow regarding integration on remand.\nThe Purchase Order\nThe question of completeness is actually the second of two concerns relevant to whether, and to what degree, the purchase order is an integration. (See J. Calamari & J. Perillo, Contracts \u00a7 3 \u2014 2, at 103 (2d ed. 1977).) The first is whether the purchase order is a final expression of the agreement between J&B and Iber. See J. Calamari & J. Perillo, Contracts \u00a7 3 \u2014 2, at 101 (2d ed. 1977).\nIt is such an expression. The allegations of J&B\u2019s complaint, assumed true for purposes of Iber\u2019s motion to dismiss, imply that J&B began its performance without responding to the purchase order. That is sufficient as to the question of finality. (See J. Calamari & J. Perillo, Contracts \u00a7 3 \u2014 2, at 102 (2d ed. 1977) (noting that a letter of confirmation generally acts as an integration if the other party makes no response to it at least prior to performance).) The purchase order is therefore an integration, leaving only the question of the completeness of its expression. See J. Calamari & J. Perillo, Contracts \u00a7 3 \u2014 2, at 103 (2d ed. 1977).\nAs a complete expression, or total integration, the parol evidence rule would preclude J&B\u2019s attempts to supplement what is provided in the purchase order through evidence of alleged understandings reached in the telephone proposal. (See J. Calamari & J. Perillo, Contracts \u00a7 3 \u2014 2, at 101, 103 (2d ed. 1977).) But as only an incomplete expression, or partial integration, supplementation by additional, consistent terms would not be precluded. See J. Calamari & J. Perillo, Contracts \u00a7 3 \u2014 2, at 101, 103 (2d ed. 1977).\nThe purchase order consists of five pages. The first four contain typewritten provisions pertaining to the work J&B was engaged to perform, namely, \"installation *** of reinforcing steel, post-tensioning and welded wire fabric.\u201d The fifth page is not addressed specifically to either J&B or that performance. It contains additional provisions not unlike the standardized terms found in form contracts. Those provisions pertain to J&B\u2019s general responsibilities as a subcontractor engaged by Iber. The provisions contained on that page, as might be expected given their standardized nature, reveal nothing as to July 31, 1990.\nReference to the telephone proposal appears near the top of the purchase order\u2019s first page. It was accomplished by tailoring, through typewritten over-strikes and insertions, a sentence containing blank spaces. Uncompleted, the sentence would have appeared as follows:\n\"ENTER THE FOLLOWING ORDER IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF\nYOUR__ SHIPMENT OR INSTALLATION TO BE COMPLETED\nAs altered, the sentence reads:\n\"ENTER THE FOLLOWING ORDER IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF YOUR telephone proposal on 12/4/89 by Terry Estes with Jerry Leander SHIPMENT OF INSTALLATION TO BE COMPLETED begin as required by .job progress.\u201d\nImmediately below that sentence are two paragraphs generally outlining J&B\u2019s responsibility to \"[flurnish all labor to complete the installation\u201d in accordance with various drawings and documents identified. Beneath those paragraphs is a list of particular responsibilities. Relevant here, J&B was made responsible for providing a \"[fjull time foreman, experienced in post-tensioned concrete *** through July 31, 1990.\u201d J&B was also responsible for \"[s]upply[ing] sufficient manpower and supervision to keep the job on schedule as agreed upon.\u201d J&B\u2019s responsibility to provide supervision was the subject of a second reference in a section of the purchase order denoted \"Notes\u201d containing additional particulars. That reference required J&B to provide supervision \"while [its] work [was] in progress.\u201d\nIber accurately points out that the absence of a completion date for J&B\u2019s performance would not necessarily prevent the purchase order from being a total integration. (See Armstrong, 301 Ill. at 106 (noting that if a writing shows itself to be a complete expression, parol evidence cannot be admitted to add another term, though the writing may contain nothing regarding it particularly).) But it is the conspicuous absence of such a date which shows, in view of the provisions above, that the purchase order cannot be considered a complete expression of the parties\u2019 agreement.\nConstructive deletion of the word \"COMPLETED\u201d and insertion of terms regarding the commencement of J&B\u2019s performance in the reference might arguably indicate an intent against the inclusion of a specific completion date. But the argument fails in view of the reference conditioning that direction, and, indeed, the entire purchase order, on what was discussed between the parties three days earlier over the telephone. And, as the appellate court noted, there is no language indicating that the terms earlier discussed were merged into the purchase order\u2019s provisions. The reference to the telephone proposal and the absence of a merger clause is the first and foremost reason to conclude that the purchase order does not embody all of the understandings reached by the parties.\nA second reason is found in the consistent construction of the provisions pertaining to J&B\u2019s responsibility regarding supervision of its work and requests to extend the time of performance. J&B was to provide supervision for the duration of its performance on the project, that is, until the date its work was completed. But, in requiring J&B to supply a full-time foreman only through July 31, 1990, the purchase order reveals an expectation that the date for that performance would be on or before July 31, 1990. Such an expectation is also critical to making sense of the provision contained in paragraph \"J\u201d of the purchase order\u2019s fifth page. Paragraph \"J\u201d permits J&B to request a \"time extension\u201d in the event of a delay. Such an extension would necessarily have to be premised on a targeted completion date for J&B\u2019s performance. The absence of such a date is most reasonably explained by the conclusion that the purchase order is but a partial integration.\nThat is the conclusion we reach. The parol evidence rule therefore cannot preclude J&B from offering proof of terms allegedly agreed to during the telephone proposal that are consistent with and would supplement, but not contradict, the purchase order.\nConsideration has so far centered on J&B\u2019s allegation that, at the price stated in the purchase order, it was not obligated to work beyond July 31, 1990. Like other legally sufficient allegations of J&B\u2019s complaint, that must ultimately be determined by a trier of fact. A finding of that allegation as fact is, as the appellate court noted, crucial to the consideration of the other arguments raised by Iber to support dismissal of the complaint.\nThe \"No Damage for Delay\u201d Clause\nParagraph \"J\u201d mentioned above also purports to exempt Iber for liability to J&B \"for any damages of any kind for any delays\u201d by \"any *** cause whatsoever.\u201d Iber argues that even if as J&B alleged, it was Iber\u2019s fault that J&B could not meet a completion date, paragraph \"J\u201d would preclude J&B from recovering damages.\nIndeed, the provision might, depending on proof as to what caused the alleged delay. Such exculpatory clauses \u2014 commonly referred to as no-damage-for-delay clauses \u2014 are enforceable though they are construed strictly against those who seek their benefit. (See An-not., 74 A.L.R.Sd 187, 200-01 (1976).) But we are presently concerned only with whether the allegations of J&B\u2019s complaint, taken as true, state a legally sufficient cause of action.\nRelevant to that determination are certain exceptions to no-damage-for-delay clauses. (See generally An-not., 74 A.L.R.3d 187 (1976).) The exceptions, one or more of which operate in most jurisdictions, are employed to avoid the harshness of such clauses, particularly those sweeping as broadly as the one here. (See Annot., 74 A.L.R.3d at 200-01.) This court generally acknowledged the exceptions in Bates & Rogers Construction Corp. v. Greeley & Hansen but has never had an opportunity to address which, if any, should be recognized in Illinois. See Bates & Rogers Construction Corp. v. Greeley & Hansen (1985), 109 Ill. 2d 225, 230, 232 (noting the case involved no argument for application of the exceptions but that its holding was not inconsistent with decisions in other jurisdictions, one of which recognized an exception for bad faith or gross negligence); but see John Burns Construction Co. v. City of Chicago (1992), 234 Ill. App. 3d 1027, 1033 (including the decision in Bates with appellate decisions stating that exceptions have been recognized in Illinois).\nOur appellate court has, however, had such opportunity. It has stated exceptions exist for delay caused by \"bad faith,\u201d delay \"not within contemplation of parties,\u201d delay of \"unreasonable duration,\u201d and delay attributable to \"inexcusable ignorance or incompetence of engineer.\u201d (See John Burns Construction Co. v. City of Chicago (1992), 234 Ill. App. 3d 1027, 1033 (citing the sum total of appellate decisions to date on the issue).\nThe first two of the exceptions recognized generally by our appellate court fall within those more or less universally acknowledged. (See Annot., 74 A.L.R.3d at 201.) The circumstances of this case make relevant those two exceptions; the first because it is applicable to the allegations of J&B\u2019s complaint, and the second because it served as the basis for the appellate court\u2019s decision on the issue here. (See 246 Ill. App. 3d at 529-30.) We therefore address the scope of those exceptions and determine whether they should operate in this State. We decline, however, to similarly examine the other exceptions recognized by our appellate court \u2014 those for delays of \"unreasonable duration\u201d and delays attributable to \"inexcusable ignorance or incompetence of engineer\u201d \u2014 as they are not so implicated.\nContracting parties are generally empowered to define the limits of their respective obligations. And courts may not arbitrarily create exceptions to provisions found in private contracts which effectively supplant that power. (See, e.g., Underground Construction Co. v. Sanitary District (1937), 367 Ill. 360, 371 (acknowledging the parties themselves had addressed the issue of damages for delay in their contract).) Thus, one measure of any judicially created exception\u2019s validity is the extent to which it avoids a harsh result yet honors the notion that merely bad bargains are beyond the concern of courts. Both of the exceptions relevant here meet that test.\nTortious, Wrongful, Willful\nThe most widely recognized exception to a no-damage-for delay clause encompasses bad faith, fraud, concealment, or misrepresentation on the part of the party asserting the clause\u2019s operation. (See Annot., 74 A.L.R.3d at 215-16.) The exception arises from duties of good faith and fair dealing implied in every contract. (See Annot., 74 A.L.R.3d at 215.) Its operation is, in that respect, essential to judicial enforcement of the legitimate objects of any agreement. We therefore agree with the appellate court that such an exception should be recognized in Illinois.\nBeyond Contemplation of the Agreement\nNot unlike the manner implied duties give rise to the exception above, the mutual assent necessary for every contract gives rise to its own related exception. Delays and obstructions not within contemplation of the parties at the time the agreement was executed necessarily lie beyond the contract\u2019s intended scope. (See An-not., 74 A.L.R.3d at 215.) Such delays and obstructions and their causes have been held to remain actionable despite no-damage-for-delay clauses. See Annot., 74 A.L.R.3d at 215.\nReasonable foreseeability is the touchstone of the exception. The contracting parties\u2019 relationship and its objectives and attendant circumstances must be taken into account. (See Annot., 74 A.L.R.3d at 215.) Only unforeseeable delays and obstructions or those not naturally arising from performance of the work itself or the subject of the contract come within the exception. See Annot., 74 A.L.R.3d at 215.\nLike that above, the immediate exception springs from the elemental foundation of the parties\u2019 agreement. It, too, is an essential mechanism in enforcing the contracting parties\u2019 expressed intent. We therefore conclude such an exception should also be recognized in Illinois.\nAllegations Respecting Damages\nOnly the first two counts of J&B\u2019s complaint seek recovery for extra costs incurred. Only those two counts are therefore affected by the argument that a claim for damages is precluded under paragraph \"J\u201d of the purchase order.\nIn count I, J&B alleged that it incurred extra costs of $50,917.68 due to Iber\u2019s wrongful conduct. Specifically, J&B alleged that Iber \"fail[ed] to properly supervise and coordinate the construction.\u201d And, when problems related to that failure arose, Iber \"intentionally and contrary to [its implied] obligations of good faith and fair dealing\u201d took \"little or no\u201d corrective action.\nUnder the exception to no-damage-for-delay clauses for tortious, wrongful, or willful misconduct, the allegations of count I are facially sufficient to overcome Iber\u2019s motion. We agree with the appellate court that count I should not have been dismissed but disagree that the not-within-contemplation-of-the-parties exception controls that outcome.\nExamination of the allegations of count II is almost as simple. In that count, J&B alternatively alleged Iber owed it the $50,917.68 \"as a consequence of a change in the scope of [J&B\u2019s] work.\u201d The change in scope was due to Iber\u2019s \"changing of the schedule for the job so that it could not be completed by July 31, 1990.\u201d J&B alleged that the contract required Iber to issue a change order to compensate J&B for additional work beyond that time, but Iber \"refused\u201d J&B\u2019s request to issue one.\nThe purchase order does, in fact, provide in its typewritten provisions that Iber was obligated to \"advise\u201d of \"all changes in the scope of work in a timely manner\u201d and to \"work\u201d with J&B \"to establish a fair value for the changes involved.\u201d It further advises J&B not to \"perform any extra work\u201d without \"a written change order authorizing same.\u201d\nAgain, under the exception to no-damage-for-delay clauses for tortious, wrongful, or willful misconduct, the allegations of count II are sufficient to overcome Iber\u2019s motion. Although bad faith or other wrongful conduct covered by the exception is not specifically alleged, it may be inferred from the allegations of Iber\u2019s conduct. Not only is it alleged that Iber intended its schedule change to preclude J&B from timely completing its performance, but Iber denied J&B the means necessary to obtain fair compensation for the attendant costs. We conclude, in the same manner as above, that the allegations are sufficient to withstand Iber\u2019s motion, although not pursuant to the exception the appellate court cited.\nIber\u2019s Alleged Duties with Regard to J&B\u2019s Performance\nIn an argument somewhat related to that based on the no-damage-for-delay clause, Iber argues that the purchase order imposed no duty on it to coordinate the overall construction. Therefore, it asserts, J&B\u2019s allegations that it could not complete its subcontracted work by July 31, 1990, are not actionable.\nIber relies on J.F. Edwards Construction Co. v. Illinois State Toll Highway Authority (1975), 34 Ill. App. 3d 929, which involved a subcontractor\u2019s suit against the Illinois highway toll authority. The subcontractor alleged that the authority had \"negligently scheduled\u201d the work of other subcontractors. As a result, it had breached implied duties to have construction sites available on the date set for the subcontractor to begin work.\nCiting what it determined were analogous Federal decisions, the court looked to the provisions of the particular contract. Those provisions, the court concluded, showed that the time fixed for the subcontractor\u2019s performance was provisional. (Edwards, 34 Ill. App. 3d at 934.) The performance was, in fact, to be controlled by the authority\u2019s engineer \"notwithstanding the dates specified.\u201d Edwards, 34 Ill. App. 3d at 933.\nThe decision in Edwards lends no support to fiber\u2019s argument that the allegations of J&B\u2019s complaint are legally insufficient. Here, J&B alleged that the agreement between it and Iber included the specific understanding reached between the parties in the telephone proposal that J&B was not obligated to work beyond July 31, 1990. That is sufficient in light of the conclusion that the parol evidence rule does not preclude evidence of such an understanding. Iber\u2019s duty to keep the work on schedule can be inferred from J&B\u2019s allegations regarding the purported completion date for its performance on July 31, 1990. See Amp-Rite Electric Co. v. Wheaton Sanitary District (1991), 220 Ill. App. 3d 130, 151-52 (acknowledging the rule that one who has the right to control the work has an implied obligation to keep the work on schedule).\nJ&B\u2019s Suspension of Work\nJ&B\u2019s complaint acknowledges that J&B suspended performance prior to its completion of the work outlined in the purchase order. Iber seizes on those allegations to assert J&B thereby effectively admitted to its own breach of contract. Iber points to paragraphs \"B\u201d and \"C\u201d of the fifth page of the purchase order. Paragraph \"B\u201d declares the purchase order terminated by an abandonment of, or refusal to continue with, the work. Paragraph \"C\u201d provides that, in the event of termination, no further payment under the purchase order would issue.\nIber\u2019s argument ignores the substance of the allegations of the complaint. J&B alleged it suspended its work only because of Iber\u2019s breach of the purchase order. If Iber did, in fact, breach the purchase order, J&B\u2019s suspension of work would be justified. As the appellate court recognized, that determination awaits a factual determination of the parties\u2019 entire agreement, including whether July 31, 1990, was the date after which J&B was not obligated to perform work under the purchase order.\nIn sum, the dismissal of J&B\u2019s complaint was error. We therefore affirm, but for the reasons outlined above, the appellate court\u2019s reversal of the circuit court\u2019s order.\nAffirmed.", "type": "majority", "author": "JUSTICE FREEMAN" } ], "attorneys": [ "F. Louis Behrends and Frank A. Hess, of Behrends & Gentry, of Peoria, for appellants.", "William R. Kohlhase, of Miller, Hall & Triggs, of Peoria, for appellee." ], "corrections": "", "head_matter": "(No. 76070.\nJ&B STEEL CONTRACTORS, INC., d/b/a J&B Steel Reinforcing and Erection, Appellee, v. C. IBER & SONS, INC., et al., Appellants.\nOpinion filed October 20, 1994.\nF. Louis Behrends and Frank A. Hess, of Behrends & Gentry, of Peoria, for appellants.\nWilliam R. Kohlhase, of Miller, Hall & Triggs, of Peoria, for appellee." }, "file_name": "0265-01", "first_page_order": 277, "last_page_order": 294 }