{ "id": 5346985, "name": "Richard Berry, d/b/a Berco & Associates, Plaintiff-Appellee, v. Blackard Construction Co. et al., Defendants-Appellants-(First Federal Savings and Loan Association of Peoria et al., Defendants.); Blackard Construction Co., Plaintiff-Appellant, v. Richard Berry, d/b/a Berco & Associates, et al., Defendants-Appellees", "name_abbreviation": "Berry v. Blackard Construction Co.", "decision_date": "1973-08-09", "docket_number": "No. 11951", "first_page": "768", "last_page": "775", "citations": [ { "type": "official", "cite": "13 Ill. App. 3d 768" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "230 N.E.2d 498", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "87 Ill.App.2d 81", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2548769, 2547865 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/87/0081-02", "/ill-app-2d/87/0081-01" ] }, { "cite": "253 N.E.2d 126", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "116 Ill.App.2d 5", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1587078 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/116/0005-01" ] }, { "cite": "111 N.E. 97", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "271 Ill. 354", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4816576 ], "opinion_index": 0, "case_paths": [ "/ill/271/0354-01" ] }, { "cite": "102 F.2d 58", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1068859 ], "opinion_index": 0, "case_paths": [ "/f2d/102/0058-01" ] } ], "analysis": { "cardinality": 714, "char_count": 15539, "ocr_confidence": 0.753, "pagerank": { "raw": 3.294330781088438e-07, "percentile": 0.8715081458417073 }, "sha256": "c966e7d30b963c4f4f2be72bc503ed7004d6689d92020f70557e9b43d800a36f", "simhash": "1:8ff8fda07b82b760", "word_count": 2555 }, "last_updated": "2023-07-14T21:56:28.394088+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Richard Berry, d/b/a Berco & Associates, Plaintiff-Appellee, v. Blackard Construction Co. et al., Defendants-Appellants\u2014(First Federal Savings and Loan Association of Peoria et al., Defendants.) Blackard Construction Co., Plaintiff-Appellant, v. Richard Berry, d/b/a Berco & Associates, et al., Defendants-Appellees." ], "opinions": [ { "text": "Mr. JUSTICE SIMKINS\ndelivered the opinion of the court:\nThis is an appeal from two judgments entered in two cases which were consolidated in trial court, and in which the issues were tried without a jury.\nOn November 6, 1969, appellant Blackard Construction Co. filed suit against appellee Richard Berry, d/b/a Berco & Associates and Great American Insurance Company (Berry\u2019s surety) alleging that Berry had breached a contract for the construction of certain facilities in Camelot Addition and sought damages for repairs of Berry\u2019s faulty work, the cost of completion of the work following Berry\u2019s refusal to proceed with the job, and consequential damages. As to this suit the trial judge found Blackard Construction Co. guilty of anticipatory breach of the contract and entered judgment in favor of Berry.\nOn February 13, 1970, the appellee Richard Berry, d/b/a Berco & Associates sued the appellant Blackard Construction Co., Richard Blackard, Yvonne Blackard and others having interests in Camelot Addition, a subdivision in Decatur, Illinois. Berry alleged breach of contract and sought to enforce his rights under the Mechanic\u2019s Lien statute. The trial judge found in Berry\u2019s favor and awarded him a mechanic\u2019s lien in the sum of $20,940.64.\nRichard D. Blackard, during the period of time in question, was the sole stockholder and President of Blackard Construction Company. He and his wife Yvonne Blackard originally purchased the land which became Camelot Addition. On June 2, 1969, Blackard and his wife entered into an agreement with Blackard Construction Company providing that all work on Camelot Addition (including the work to be performed by appellee Berry) would be completed by February 1, 1970. Blackard Company was to develop the subdivision, supervise the installation of all improvements and was granted the option to purchase the improved lots and to promote sales. On June 16, 1969, Blackard Company and Berry entered into a contract pursuant to which Berry was to construct sanitary sewers, storm drainage, water mains and alternate streets for the Camelot Addition. The first paragraph of the agreement incorporated, by reference, Standard Specifications for Water and Sewer Main Construction in Illinois, first edition, August 1, 1967, a publication by the Illinois Society of Professional Engineers and other related groups interested in the titled subject. The book contains 152 pages. The contract further provided that \u201cThe work * * * shall be completed in 180 work days. * * * Work days shall be determined by the Engineer.\u201d Other pertinent paragraphs provided as follows:\n\u201c4. PROGRESS PAYMENT. BLACKARD shall make payment on account of the contract as provided therein as follows:\nOn or about the 15th day of each month, an amount equal to 90% of the value, based upon the contract price of labor and materials, incorporated in the work up to the last day of the preceding month, as certified to by Warren E. Hagan, as engineer, less the aggregate of previous payments.\n5. ACCEPTANCE AND FINAL PAYMENT. Final payment shall be due thirty days after substantial completion of the work, provided the work be then fully completed and the contract fully performed.\nUpon receipt of written notice that the work is ready for final inspection and acceptance, the Engineer shall promptly make such inspection and when he finds the work acceptable under the contract and the contract fully performed, he shall promptly issue a final certificate under his own signature, stating that the work provided for in this contract has been completed and is accepted by him under the terms and conditions thereof, and that the entire balance found to be due BERCO, and noted in said final certificate, is due and payable.\nBefore issuance of final payment BERCO shall submit evidence satisfactory to Warren E. Hagan, Engineer, that all payrolls, material bills, and other indebtedness connected with the work have been paid or otherwise satisfied.\u201d\nBerry was to commence work by June 23, 1969. He was paid, pursuant to the above-recited paragraph 4 of the contract, a progress payment of $6,470.28 for work completed through July 1, 1969; he received a progress payment of $16,661.46 for work completed, from July 1, 1969, to August 1, 1989, and a third progress payment in the amount of $37,855.05 for work completed from August 1, 1969, to September 1, 1969. Warren Hagan, engineer for Blackard testified, with reference to the progress payments as follows:\n\u201cQ. In connection with this contract, did you on a monthly basis prepare what was called an Engineer\u2019s Payment Estimate?\nHAGAN: Yes.\nJ. And what was meant to be covered by the estimates on a monthly basis?\nHAGAN: The estimates were to cover all of the work installed in the project.\nQ. Did those estimates reflect whether or not.the work was installed in accordance with the contract?\nHAGAN: No, they did not.\u2019\u201d\nHagan then prepared a fourth progress payment report for Blackard which indicated payment due Berry in the amount of $35,756.13. This fourth progress payment report encompassed some 320 lineal feet of 12 inch sewer pipe. Hagan testified, with reference to this report as follows:\n\"Q. Am I correct in assuming that at the time you prepared this it was your best judgment, without having actually measured, that there was 320 lineal feet of the 12 inch sewer pipe installed on the ground?\nHagan: Approximately 320 feet, yes.\nQ. And by showing it there you did not mean to state to anyone that it had been completed in the sense that it had been tested and accepted by the city, did you?\nA. That it had been tested or accepted by our office or the city.\nQ. That it was simply installed in the ground?\nA. Simply in place.\"\nBlackard then refused to pay the $35,756.13 shown to be due Berry according to the fourth progress payment report, advising Berry on October 7, 1969, that \u201c* * # Payments are to be made on work in place and accepted. The sewer is not acceptable. Therefore, payment for sewer work in place and not accepted will not be made.\u201d On October 22, Blackard advised Berry that he had ten days in which to correct defects in the sewer fine. Berry did no further work on the job after October 17, 1969, stating that his only reason was Blackard\u2019s refusal to pay the $35,756.13. Thereafter, on November 3, 1969, Blackard declared the contract forfeited, took over the project and completed it.\nBlackard first urges that the trial court erred in finding that it breached the contract by \u201canticipatory repudiation in view of the express terms of the contract.\u201d It is undisputed that in October, 1969, some of the work in place was not in a condition to be finally acceptable.\nThe resolution of this assignment of error hinges upon the construction of the contract between Berry and Blackard Construction Co. In essence the trial judge interpreted the above-quoted paragraphs 4 and 5 of the contract to mean that Berry had 180 working days to complete the project with all work finally acceptable under the plans and specifications, and that he was entitled, each month, to receive (upon the basis of the engineer\u2019s progress payment report) a sum equal to 90% of the value of labor and materials incorporated in the work during the period covered by the report, and that Berry had 180 days within which to make the work finally acceptable. It is clear that this is precisely what the contract says absent reference to the 152-page treatise incorporated by reference as above recited. The trial judge made extensive and detailed findings of fact and conclusions of law. A portion of those findings are as follows:\n6. (the contract \u201c* * * provides, inter alia, for 180 working days for the completion of the work and for progress pay-\nments monthly of 90% of the value of labor and materials incorporated in the job during the preceding month as certified to by the engineer on the project.\u201d\n7. \u201cThat * * * Berry completed 71 working days * *\n# # #\n13. \u201cThat the payment estimate number 4 aforesaid of\n$35,756.13 was never paid * *\n# # #\n20. \u201cThat Blackard * * * declared the contract forfeited\non November 3, 1969, and took over the project at that time.\u201d\n# # #\n24. \u201cThat Blackard\u2019s action was taken after only 71 of 180\nworking days called for in the contract had elapsed and Blackard is guilty of an anticipatory breach of the contract\u201d.\n25. \u201cThat Blackard\u2019s actions of non-payment and forfeiture effectively prevented Berry from making repairs to work already installed, if any be needed, and from completing his contract\u201d.\n26. \u201cThat there is no substantial and credible evidence in the record that Berry could not have completed his contract in an acceptable manner within the aforesaid 180 days\u201d.\nIt is apparent that finding of fact No. 6 is, despite the label, the trial judge\u2019s construction of the contract between the parties. The fact that a finding by the trial court is designated a finding of fact does not preclude review of that finding as a question of law if it actually is. (Illinois Bell Telephone Company v. Slattery (1939), 102 F.2d 58.) Where there is a written contract and extrinsic facts are free from dispute, construction of the contract is a question of law, not fact. (Rosenbaum Bros. v. Devine, 271 Ill. 354, 111 N.E. 97.) Where all the parties adopt and act on a certain construction of a contract, there is not better extrinsic evidence of their intention than the interpretation they themselves placed upon it. (American National Bank and Trust Company v. Lembessis, 116 Ill.App.2d 5, 253 N.E.2d 126.) The record here indicates that Hagan and Blackard were aware that some of the work in place did not conform to final acceptable standards prior to Berry\u2019s receipt of progress payments made to him on the basis of the engineer\u2019s estimates number 2 and 3, and, indeed, that Hagan made no effort to ascertain \u201cfinal acceptability\u201d as to the work in place when those estimates were made nor did Blackard demand that he do so. Hagan also made no determination of \u201cfinal acceptability\u201d in preparing progress estimate No. 4. The parties had, in fact, construed the contract precisely as the trial court did prior to Blackard\u2019s letter of October 7, 1969, and the trial court\u2019s construction of paragraphs 4 and 5 of the contract is predicated upon the proposition that those paragraphs are couched in plain, unambiguous language and simply mean what they say. This approach to an effort to divine the meaning of language employed in a contract is to be commended.\nBlackard argues that reference to the Standard Specifications For Water and Sewer Main Construction in Illinois supports the position that progress payments are not to be made until the work meets final acceptability standards. We note that this volume contains detailed specifications concerning materials, mechanical preparation and methods of installing water and sewer mains. The contract between Blackard and Berry provided, with reference to the incorporation of the Standards, as follows:\n\u201c1. Scope of Work. Berco shall furnish all of the materials and perform all of the work as described in Section 1 \u2014 Sanitary Sewers, Section 2 \u2014 Storm Drainage, Section 3 \u2014 Watermains, and Section 5 \u2014 Alternate Streets and shown on the plans for \u201cCamelot\u201d prepared by Warren E. Hagan * * * and shall do everything required by this agreement and the specifications prepared by \u00b0 * 6 Hagan for this project, all to be done in accordance with the Standard Specifications for Water and Sewer Main Construction in Illinois * *\nBlackard argues that sections 5 \u2014 10, 7 \u2014 18, and 8 \u2014 11 of the Standards are part of his contract with Berry and are designed to protect the owner in the event that the work does not comply with the specifications. It would unduly lengthen this opinion to quote these in detail. We agree that the provisions were inserted for the protection of the owner, but it is equally clear that none of them have any bearing upon the conditions for progress payments set forth in paragraph 4 of the contract. The trial court\u2019s interpretation of paragraph 4 of the contract to the effect that it means precisely what it says is correct, and we agree that it is unambiguous and not susceptible of a different \u201cinterpretation\u201d. Berry was entitled to receive the $35,756.13 progress payment No. 4 as certified to by Hagan and Blackard did breach the contract by refusing to make that payment.\nBlackard next contends that the trial court \u201cerred in granting Berry a Mechanic\u2019s Lien in view of Berry\u2019s breach of contract\u201d. The trial court ruled that Blackard, not Berry, breached the contract. We have agreed with that ruling.\nBlackard\u2019s final contention is that the trial court erred in granting to Berry a mechanic\u2019s lien for an amount which exceeds the \u201cvalue\u201d of his work. In substance the argument is that the trial judge\u2019s finding, as to the amount of lien awarded, is against the manifest weight of the evidence. The findings of fact conclusions of law made with reference to the lien awarded are as follows:\n\u201c33. That the Court calculates Berrys lien, based upon the evidence submitted, including the exhibits, and matters admitted in the pleadings, and certain stipulations made, as follows:\nBalance due on Estimate No. 4 $35,756.13\nExtra (mainly street grading) 2,440.03\nRetainage \u2014 Estimate No. 4 10,749.21\nWork in place not on Estimate No. 4 6,620.24\nMaterials left on site 2,918.71\nCrushed stone 1,325.30\n$59,890.72\nDeductions:\nPaid to suppliers $12,407.77\nRepairs to sewer in place 18,852.46\nRepairs to water mains 814.72\nRepairs to curbing 270.00\nEngineering at 15% 2,990.58\n$35,335.53\nOverhead at 10% 3,533.55\n$38,869.08\nLien Total $20,940.64\nCONCLUSIONS OF LAW\n1. That Berry is entitled to a Mechanic\u2019s Lien on the premises in the amount of $20,940.64 and costs of suit.\u201d\nBlackard\u2019s argument as to the amount of lien is, in essence, directed to the cost of repairs which it says must be made to a sewer line which, contains three areas of sag. The line in question is operating. The trial judge expressly found, with reference to the issue of repairs to sewer line in place that:\n\u201c31. That the evidence concerning repair of the sewer work in place, the value of material left on the premises by Berry and used by Blackard, and the amount of crushed stone left on the premises is so conflicting as to be almost impossible to determine.\n32. That with the exception of Glenn Chastain the Court had no benefit of independent testimony and the testimony of Chastain is vague and uncertain.\u201d\nThe evidence as to necessity of repair, extent of repairs and costs of repairs is, as the trial judge found, vague, uncertain and in sharp conflict. It is not the function of this Court to reweigh and reevaluate that evidence. (Landolt v. Stratmann, 87 Ill.App.2d 81, 230 N.E.2d 498.)\nThe judgment of the trial court in assessing damages is not against the manifest weight of the evidence.\nJudgment affirmed.\nSMITH, P. J., and TRAPP, J., concur.", "type": "majority", "author": "Mr. JUSTICE SIMKINS" } ], "attorneys": [ "Wayne E. Armstrong and Jon D. Robinson, of Hull, Armstrong & Campbell, of Decatur, for appellants.", "Samuels, Miller, Schroeder, Jackson & Sly, of Decatur, (Thomas S. Sly and John S. Cobb, of counsel,) for appellees." ], "corrections": "", "head_matter": "Richard Berry, d/b/a Berco & Associates, Plaintiff-Appellee, v. Blackard Construction Co. et al., Defendants-Appellants\u2014(First Federal Savings and Loan Association of Peoria et al., Defendants.) Blackard Construction Co., Plaintiff-Appellant, v. Richard Berry, d/b/a Berco & Associates, et al., Defendants-Appellees.\n(No. 11951;\nFourth District \u2014\nAugust 9, 1973.\nRehearing denied September 12,1973.\nWayne E. Armstrong and Jon D. Robinson, of Hull, Armstrong & Campbell, of Decatur, for appellants.\nSamuels, Miller, Schroeder, Jackson & Sly, of Decatur, (Thomas S. Sly and John S. Cobb, of counsel,) for appellees." }, "file_name": "0768-01", "first_page_order": 790, "last_page_order": 797 }