{ "id": 3524353, "name": "CONCORD INDUSTRIES, INC., Plaintiff-Appellant, v. HARVEL INDUSTRIES CORPORATION, Defendant-Appellee", "name_abbreviation": "Concord Industries, Inc. v. Harvel Industries Corp.", "decision_date": "1984-03-20", "docket_number": "No. 83\u2014128", "first_page": "845", "last_page": "850", "citations": [ { "type": "official", "cite": "122 Ill. App. 3d 845" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "408 N.E.2d 1069", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "87 Ill. App. 3d 480", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3179746 ], "year": 1982, "pin_cites": [ { "page": "486" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/87/0480-01" ] }, { "cite": "32 DePaul L. Rev. 565", "category": "journals:journal", "reporter": "DePaul L. Rev.", "year": 1983, "opinion_index": 0 }, { "cite": "408 N.E.2d 782", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1983, "opinion_index": 0 }, { "cite": "86 Ill. App. 3d 1105", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3187264 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "1112" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/86/1105-01" ] }, { "cite": "371 N.E.2d 634", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "69 Ill. 2d 320", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5455758 ], "weight": 2, "pin_cites": [ { "page": "334" }, { "page": "334" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/69/0320-01" ] }, { "cite": "365 N.E.2d 316", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "51 Ill. App. 3d 11", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3385951 ], "pin_cites": [ { "page": "15" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/51/0011-01" ] }, { "cite": "355 N.E.2d 86", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "41 Ill. App. 3d 706", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2488498 ], "pin_cites": [ { "page": "710" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/41/0706-01" ] }, { "cite": "422 N.E.2d 86", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "96 Ill. App. 3d 834", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 12142977 ], "pin_cites": [ { "page": "843-44" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/96/0834-01" ] }, { "cite": "432 N.E.2d 999", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "104 Ill. App. 3d 357", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5473892 ], "pin_cites": [ { "page": "360" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/104/0357-01" ] } ], "analysis": { "cardinality": 540, "char_count": 11145, "ocr_confidence": 0.757, "pagerank": { "raw": 1.9784374707022469e-07, "percentile": 0.7402736607423831 }, "sha256": "0b64f7bd8049a92967770d6a9019eac72a556ccb4650f8ca9426cb1b85f5c75f", "simhash": "1:c11f1101b97d17f4", "word_count": 1791 }, "last_updated": "2023-07-14T18:37:51.597464+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "CONCORD INDUSTRIES, INC., Plaintiff-Appellant, v. HARVEL INDUSTRIES CORPORATION, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE STAMOS\ndelivered the opinion of the court:\nThis suit arises from the sale by plaintiff Concord Industries, Inc. (Concord) of a plastic drinking straw manufacturing business to defendant Harvel Industries Corporation (Harvel) pursuant to a written agreement. Concord appeals from a pretrial ruling of the circuit court denying its motion for leave to file certain amended pleadings. Jurisdiction is premised on Supreme Court Rule 304(a) (87 Ill. 2d R. 304(a)).\nThe written agreement from which this action arises was executed on December 14, 1979, and provided for the sale of Concord\u2019s plastic drinking straw, stirrer and sipper manufacturing business to Harvel for $700,000. The contract required Harvel to supply all of Concord\u2019s requirements for the products manufactured by the business, such products to be sold to Concord at Harvel\u2019s most favored customer rate. Concord agreed to lease factory space to Harvel for five months at an agreed monthly rate in order to allow Harvel to prepare its own facilities for the purchased machinery. Utility expenses were to be allocated on a pro rata basis. Concord also agreed not to compete with Harvel in the plastic straw, stirrer and sipper business for a period of three years.\nIn the period following the sale, during which Harvel leased plant space from Concord, Harvel requested janitorial and secretarial services, insurance and other goods and services from Concord. Concord provided these goods and services, although they were not called for under the contract. Concord has not been compensated for this activity.\nAfter the sale was completed, Harvel failed to meet Concord\u2019s requirements for the manufactured products and Concord filed suit seeking recovery on several grounds. Count I of Concord\u2019s amended complaint was brought on an account stated theory Counts II and IV were brought in breach of contract and count III sought recovery based upon unjust enrichment. Counts V and VI, alleging tortious breach of the duty of good faith, sought compensatory and punitive damages respectively for Harvel\u2019s failure to supply Concord\u2019s requirements as required under the contract. Counts VII and VIII sought compensatory and punitive damages for tortious interference with contractual relations arising from Concord\u2019s inability to meet its obligations to its reserved customers as a result of Harvel\u2019s failure to supply Concord\u2019s requirements.\nHarvel moved to strike and dismiss counts III, V, VI, VII and VIII of the amended complaint and the trial court dismissed these counts after a hearing on August 30,1982.\nOn September 29, 1982, Concord filed a motion to vacate the order of August 30, to the extent necessary to grant Concord leave to file its proposed amended count III, seeking recovery in quantum meruit for the value of the goods and services provided to Harvel during the period of Harvel\u2019s lease of the factory space; its proposed amended count V, alleging fraud in inducing Concord to sell its manufacturing operation; and its proposed amended count VI, seeking damages under the Uniform Commercial Code for Harvel\u2019s failure to supply Concord\u2019s requirements.\nAfter a hearing on Concord\u2019s motion to vacate, the trial court held that proposed amended Count III was barred as a matter of law due to the existence of an express contract between the parties, and that proposed amended count V was barred due to the existence of a remedy in breach of contract. The trial court granted leave to file a second amended complaint incorporating proposed amended count VI only. Concord appeals from the denial of leave to file its proposed amended counts III and V.\nConcord first contends that the trial court erred in holding that its proposed quantum meruit count was barred as a matter of law due to the existence of an express contract between the parties.\n\u201cQuantum meruit\u201d is an expression defining the nature and extent of the liability imposed by a contract implied by law. This liability is predicated on the reasonable value of services performed. (Edens View Realty & Investment, Inc. v. Heritage Enterprises, Inc. (1980), 87 Ill. App. 3d 480, 486, 408 N.E.2d 1069.) Generally, no quasi-contractual claims can arise when an express contract exists between the parties concerning the same subject matter upon which the quasi-contractual claim rests. Industrial Lift Truck Service Corp. v. Mitsubishi International Corp. (1982), 104 Ill. App. 3d 357, 360, 432 N.E.2d 999.\nIn the instant case, Concord seeks recovery in quantum meruit for the value of the goods and services provided to Harvel during Harvel\u2019s lease of Concord\u2019s plant. Harvel argues that, under Industrial Lift Truck, Concord\u2019s claim is barred by the existence of the express contract between the parties. Concord contends, however, that it provided the goods and services to Harvel independent of the written agreement and that therefore quantum meruit recovery is not barred by the existence of that agreement. The trial court found Industrial Lift Truck to be dispositive. We find the facts in Industrial Lift Truck to be distinguishable from those of the instant case.\nIn Industrial Lift Truck, the plaintiff had a comprehensive dealership contract to retail the defendant\u2019s trucks in the United States. The terms of the contract permitted the defendant to unilaterally terminate the relationship at any time, and precluded amendment of the contract without the defendant\u2019s express consent. The plaintiff, on its own initiative, began modifying the trucks so as to increase their marketability in the United States. The defendant subsequently terminated the relationship, and the plaintiff sought recovery in quantum meruit for the value of its modifications. The plaintiff\u2019s claim was dismissed by the trial court with prejudice.\nOn appeal, the court found that compensation for the plaintiff\u2019s modifications was governed by the contract, even in the absence of express language to that effect. The court found that the plaintiff had undertaken the modifications at its own risk for the purposes of increasing its profits, but had not sought to amend the contract to provide compensation for these modifications. Therefore, the court reasoned, the plaintiff could not claim that the defendant had been unjustly enriched by the modifications.\nThe modifications made by the plaintiff in Industrial Lift Truck, though not expressly covered by the contract, were voluntarily undertaken by the plaintiff with knowledge of the defendant\u2019s right to terminate the contract at any time under terms defining the entire relationship of the parties regarding the general subject matter of the contract and precluding amendment of the contract terms without the defendant\u2019s express consent. This is not the situation in the instant case, where Concord provided the goods and services to Harvel at Harvel\u2019s request with the expectation that Concord would be fully compensated and with little possibility that Concord\u2019s position under the contract would be enhanced. It is therefore clear that quantum meruit recovery is not barred by the terms of the parties\u2019 written agreement in the instant case.\nIt appears that the trial court based its decision additionally upon its interpretation of Concord\u2019s proposed amended count III as alleging the existence of an express oral contract for the provision of the goods and services in question. The trial court held that, because count III alleged elements of an express oral contract, recovery in quantum meruit should be barred. We find this holding to be error.\nIt is clear that in Illinois a plaintiff can alternatively plead inconsistent bases of recovery where there is uncertainty as to which allegation is true. (Ill. Rev. Stat. 1981, ch. 110, par. 2 \u2014 613(b); see Business Development Services, Inc. v. Field Container Corp. (1981), 96 Ill. App. 3d 834, 843-44, 422 N.E.2d 86.) Therefore, it is permissible for Concord to alternatively seek recovery under an express contract and in quantum meruit. (See Neville v. Davinroy (1976), 41 Ill. App. 3d 706, 710, 355 N.E.2d 86.) At this stage of the proceedings, it is impossible to make a factual determination as to the existence of an express oral contract which would preclude Concord from recovering in quantum meruit. Concord\u2019s proposed quantum meruit count properly alleges the elements required for recovery (see O\u2019Neil & Santa Claus, Ltd. v. Xtra Value Imports, Inc. (1977), 51 Ill. App. 3d 11, 15, 365 N.E.2d 316), and the trial court could not have determined from the pleadings alone that an express oral contract existed which would bar the recovery sought by Concord in its quantum meruit count. We therefore find that the trial court erred in denying Concord leave to file its proposed amended count III.\nConcord next contends that the trial court erred in denying it leave to file its proposed amended count V seeking recovery in fraud in the inducement. The proposed pleadings alleged that, in order to induce Concord to enter into the written contract, Harvel agreed to supply Concord with its requirements for certain products manufactured by the plant, with the intent not to perform. The trial court denied leave to file this count, stating that it was barred due to the existence of a remedy in breach of contract.\nIt is the general rule in Illinois that a promise of future conduct made without intention to perform is not a misrepresentation. (Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 334, 371 N.E.2d 634.) However, \u201cthere is a recognized exception where the false promise or representation of future conduct is alleged to be the scheme employed to accomplish the fraud.\u201d (69 Ill. 2d 320, 334.) Where a party makes a promise of performance, not intending to keep the promise but intending for another party to rely on it, and where that other party relies upon it to his detriment, the false promise will be considered an intended scheme to defraud the victim and will be actionable. Vance Pearson, Inc. v. Alexander (1980), 86 Ill. App. 3d 1105, 1112, 408 N.E.2d 782; see Polelle, An Illinois Choice: Fossil Law or an Action for Promissory Fraud? 32 DePaul L. Rev. 565 (1983).\nConcord desires leave to file an amended complaint seeking recovery for fraud in the inducement. It is clear that the pleading of such a cause of action is permissible in fllinois. The existence of a remedy in breach of contract does not bar a party from seeking recovery for fraud in the inducement. (See Vance Pearson, Inc. v. Alexander (1980), 86 Ill. App. 3d 1105, 408 N.E.2d 782.) We therefore find that the trial court also erred in denying Concord leave to file its proposed fraud in the inducement count.\nThe decision of the circuit court is reversed and the cause is remanded.\nReversed and remanded.\nHARTMAN, P.J., and DOWNING, J., concur.", "type": "majority", "author": "JUSTICE STAMOS" } ], "attorneys": [ "Deutsch, Levy & Engel, Chartered, of Chicago (David C. Kemerer, of counsel), for appellant.", "Kwiatt & Silverman, Ltd., of Chicago (Scott E. Tuckman, of counsel), for appellee." ], "corrections": "", "head_matter": "CONCORD INDUSTRIES, INC., Plaintiff-Appellant, v. HARVEL INDUSTRIES CORPORATION, Defendant-Appellee.\nFirst District (2nd Division)\nNo. 83\u2014128\nOpinion filed March 20, 1984.\nDeutsch, Levy & Engel, Chartered, of Chicago (David C. Kemerer, of counsel), for appellant.\nKwiatt & Silverman, Ltd., of Chicago (Scott E. Tuckman, of counsel), for appellee." }, "file_name": "0845-01", "first_page_order": 867, "last_page_order": 872 }