{
  "id": 2646447,
  "name": "Leslie Kell, Plaintiff-Appellee, v. Alois Kosary, as Administrator of the Estate of Gertrude Kosary, Deceased, and Louis Kosary, Defendants-Appellants",
  "name_abbreviation": "Kell v. Kosary",
  "decision_date": "1968-03-27",
  "docket_number": "Gen. No. 51,623",
  "first_page": "400",
  "last_page": "403",
  "citations": [
    {
      "type": "official",
      "cite": "93 Ill. App. 2d 400"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [
    {
      "cite": "2 Ill App 414",
      "category": "reporters:state",
      "reporter": "Ill. App.",
      "case_ids": [
        4789542
      ],
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        "/ill-app/2/0414-01"
      ]
    }
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  "last_updated": "2023-07-14T21:30:43.606130+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Leslie Kell, Plaintiff-Appellee, v. Alois Kosary, as Administrator of the Estate of Gertrude Kosary, Deceased, and Louis Kosary, Defendants-Appellants."
    ],
    "opinions": [
      {
        "text": "MR. JUSTICE DRUCKER\ndelivered the opinion of the court.\nDefendants appeal from a judgment of $8,947.47 entered in favor of plaintiff after a bench trial. On appeal defendants contend that plaintiff\u2019s claim for \u201cextras\u201d was barred by the Statute of Limitations, that the absence of a written agreement for extras as required by the contract barred the claim and that the testimony of plaintiff\u2019s wife was incompetent.\nThe original complaint was filed on May 23, 1962, and alleged that plaintiff entered into a written contract with Gertrude Kosary on April 7, 1954; that he agreed to provide materials and labor for the improvement of certain buildings owned by the Kosarys for the sum of $19,810; that plaintiff provided all labor and materials required by the contract and also \u201cadditional work and materials requested by the defendants\u201d; that the Kosarys had made certain payments but still owed plaintiff $8,947.47. Defendants\u2019 answer admitted the execution of the contract but denied that it was executed on behalf of both defendants or that plaintiff did additional work or that there was any balance due under the contract and asked that the suit be dismissed.\nGertrude Kosary died after the filing of the original complaint and plaintiff was given leave to amend the complaint substituting the administrator of her estate for the decedent. Plaintiff then filed an amended complaint substantially repeating the allegations of the original complaint but adding \u201cand requests\u201d to a sentence reading: \u201cThat said defendants . . . made certain payments required under said contract and requests.\u201d Defendants then moved to strike the amended complaint, first, because the written contract provided that any change of the original contract\u2019s terms must be in writing and second, because any oral agreement was barred by the five-year Statute of Limitations. The court denied the motion to strike.\nWe believe the court erred in denying the motion to strike the complaint. It alleged that plaintiff was due $8,947.47 under a written contract for $19,810 and for \u201cadditional labor and materials requested of him.\u201d Defendants stated in their motion to strike that the claim for \u201cextras\u201d was not in writing as provided in the contract and was therefore not enforceable. Their principal argument, however, was that the request for \u201cextras\u201d must have been oral and therefore barred by the five-year Statute of Limitations. Since the cause of action for the \u201cextras\u201d accrued in 1954, the institution of suit in 1962 is too late if it is governed by the Statute of Limitations for oral contracts. In Brown v. Kragel, 2 Ill App 414, plaintiff contracted in writing to perform the carpentry work in the construction of a house. Plaintiff sued on the written contract and for \u201cextras.\u201d While upholding the validity of the suit under the written contract, the court held that for the purposes of the Statute of Limitations the claim for \u201cextras\u201d was separate and barred by the five-year statute.\nThe amended complaint showed on its face that the amount claimed was due both under the written contract and for \u201crequests\u201d for additional work. In their motion to strike defendants stated that there was no written contract for these \u201crequests.\u201d Plaintiff did not contravene this assertion or assert any facts which would have removed the five-year bar of the Statute of Limitations on oral contracts. Therefore the \u201crequests\u201d for additional work had to be considered as oral and subject to the five-year Statute of Limitations.\nPlaintiff now argues that the agreement for extras, though not reduced to writing, was a modification of the written contract itself rather than a separate agreement and therefore governed by the ten-year statute. The written contract called for the construction of nurses\u2019 quarters, a garage and a building connecting the two. The \u201cextras\u201d were for the remodeling of an old garage with additional rooms and an extra bathroom and attaching the old garage to the building described in the written contract. The extra work was so different from that called for under the contract that it was the subject of a separate oral agreement rather than a mere modification of the written contract.\nThe motion to strike the amended complaint should have been allowed. Plaintiff combined both the amount due under the written contract and the amount due for \u201cextras.\u201d Since the evidence disclosed that there is a balance due plaintiff under the original written contract for $19,810, the plaintiff is entitled to seek recovery for any amount that may be due thereunder. We reverse the judgment and remand the cause with directions to strike the amended complaint and grant leave to plaintiff to file a second amended complaint for such amount as may be due plaintiff under the original written contract for $19,810.\nWe find no necessity for a consideration of other points urged by defendants.\nReversed and remanded with directions.\nMcCORMICK, P. J. and ENGLISH, J., concur.\nThe contract provided:\nAny alteration or deviation from the above specifications involving extra cost of material or labor will only be executed upon written orders for same, and will become an extra charge over the sum mentioned in this contract. All agreements must be made in writing.\nThe Statute of Limitations requires that suit be instituted within five years of the time the cause of action accrues on oral contracts and within ten years on written contracts. Ill Rev Stats, c 83, \u00a7\u00a716 and 17 (1963).\nIll Rev Stats, c 110, \u00a7 48 (1965) entitled \u201cInvoluntary dismissal based upon certain defects or defenses\u201d provides in part in subsection (3):\nIf, upon the hearing of the motion, the opposite party presents affidavits or other proof denying the facts alleged or establishing facts obviating grounds of defect, the court may hear and determine the same and may grant or deny the motion.\nWe are not to be considered as holding that if the later agreement were properly deemed to be a modification of the original contract, it would necessarily follow that the ten-year limitation period would apply.",
        "type": "majority",
        "author": "MR. JUSTICE DRUCKER"
      }
    ],
    "attorneys": [
      "Mathew K. Szygowski, Moriarity, Rose, Faccenda & Hultquist, of Chicago, for appellants.",
      "Walter F. Briody, of Blue Island, for appellee."
    ],
    "corrections": "",
    "head_matter": "Leslie Kell, Plaintiff-Appellee, v. Alois Kosary, as Administrator of the Estate of Gertrude Kosary, Deceased, and Louis Kosary, Defendants-Appellants.\nGen. No. 51,623.\nFirst District, Fourth Division.\nMarch 27, 1968.\nMathew K. Szygowski, Moriarity, Rose, Faccenda & Hultquist, of Chicago, for appellants.\nWalter F. Briody, of Blue Island, for appellee."
  },
  "file_name": "0400-01",
  "first_page_order": 406,
  "last_page_order": 409
}