{ "id": 3506858, "name": "FELIX J. AMBROSE, d/b/a F. J. Ambrose Construction, et al., Plaintiffs-Appellees and Counterdefendants-Appellees, v. AUBREY F. BIGGS et al., Defendants-Appellants (Aubrey F. Biggs et al., Counterplaintiffs-Appellants)", "name_abbreviation": "Ambrose v. Biggs", "decision_date": "1987-05-27", "docket_number": "No. 2\u201486\u20140095", "first_page": "515", "last_page": "520", "citations": [ { "type": "official", "cite": "156 Ill. App. 3d 515" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "58 Ill. App. 3d 287", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5624650 ], "pin_cites": [ { "page": "289" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/58/0287-01" ] }, { "cite": "79 Ill. App. 2d 377", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2564960 ], "pin_cites": [ { "page": "389-90" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/79/0377-01" ] }, { "cite": "51 Or. App. 547", "category": "reporters:state", "reporter": "Or. App.", "case_ids": [ 2079782 ], "weight": 2, "pin_cites": [ { "page": "552" }, { "page": "396" } ], "opinion_index": 0, "case_paths": [ "/or-app/51/0547-01" ] }, { "cite": "84 N.E.2d 460", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "461" } ], "opinion_index": 0 }, { "cite": "324 Mass. 15", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 510407 ], "pin_cites": [ { "page": "17" } ], "opinion_index": 0, "case_paths": [ "/mass/324/0015-01" ] }, { "cite": "85 S.D. 142", "category": "reporters:state", "reporter": "S.D.", "case_ids": [ 4721617 ], "weight": 2, "year": 1949, "pin_cites": [ { "page": "746" } ], "opinion_index": 0, "case_paths": [ "/sd/85/0142-01" ] }, { "cite": "70 Ill. 420", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5308996 ], "weight": 3, "pin_cites": [ { "page": "424" }, { "page": "424" } ], "opinion_index": 0, "case_paths": [ "/ill/70/0420-01" ] }, { "cite": "50 Ill. App. 247", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5121210 ], "weight": 2, "year": 1873, "pin_cites": [ { "page": "253" } ], "opinion_index": 0, "case_paths": [ "/ill-app/50/0247-01" ] }, { "cite": "74 Ill. App. 3d 380", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3266729 ], "pin_cites": [ { "page": "386" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/74/0380-01" ] }, { "cite": "60 Ill. App. 2d 309", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2604376 ], "pin_cites": [ { "page": "311" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/60/0309-01" ] }, { "cite": "144 Ill. App. 3d 974", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3499930 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/144/0974-01" ] } ], "analysis": { "cardinality": 591, "char_count": 12576, "ocr_confidence": 0.749, "pagerank": { "raw": 1.5622222080018775e-07, "percentile": 0.6771271220831794 }, "sha256": "8c55bf716c107f44745ddd9d5dd27d43ff00d29b1af2deac190e82a17f64afb9", "simhash": "1:cbf822ac730d5251", "word_count": 2034 }, "last_updated": "2023-07-14T21:00:40.510932+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "FELIX J. AMBROSE, d/b/a F. J. Ambrose Construction, et al., Plaintiffs-Appellees and Counterdefendants-Appellees, v. AUBREY F. BIGGS et al., Defendants-Appellants (Aubrey F. Biggs et al., Counterplaintiffs-Appellants)." ], "opinions": [ { "text": "JUSTICE DUNN\ndelivered the opinion of the court:\nThis appeal arises from a building contract entered into between Felix Ambrose, d/b/a F. J. Ambrose Construction Company, (Ambrose), and Aubrey and Beverly Biggs (Biggses), for the construction of a house on property owned by the Biggses. A dispute over the final payout on the contract caused Ambrose to file claims for a mechanic\u2019s lien and breach of contract against, among others, the Biggses. The Bigg-ses counterclaimed for damages. After a bench trial, the court found in favor of Ambrose on its contract claim, against Ambrose on its mechanic\u2019s lien claim, and against the Biggses on their counterclaim. The Biggses appealed.\nThe contract was signed by the parties on September 1, 1983, and included the following pertinent provisions: (1) payment of the contract price was to be made in three installments \u2014 the first payout when construction was under roof, the second payout when the trades were roughed in, and the third and final payout upon substantial completion of the building; (2) Ambrose would comply with the Mechanics\u2019 Liens Act (Ill. Rev. Stat. 1983, ch. 82, par. 1 et seq.); (3) the bpilding must be substantially completed in six months; and (4) any extras must be evidenced in writing and any adjustment to the contract price resulting from extras shall be determined by mutual agreement of the parties before starting the work involved.\nAmbrose proceeded to build the house, and the Biggses made the first two payouts as the work progressed. The payouts were made despite Ambrose\u2019s lack of compliance with the Mechanics\u2019 Liens Act\u2019s requirement that a sworn contractor\u2019s statement be provided prior to any payouts by the owner. (Ill. Rev. Stat. 1983, ch. 82, par. 5.) During construction, the Biggses, one or both of whom were on the premises nearly every day, ordered several extras which Ambrose duly constructed. In August 1984, as the house neared completion, Ambrose requested the final payout. The Biggses refused to make the payment and Ambrose stopped work.\nAmbrose initiated suit against the Biggses seeking enforcement of a mechanic\u2019s lien and recovery of damages on the contract. The Bigg-ses responded by asserting that Ambrose\u2019s failure to file a proper sworn contractor\u2019s statement vitiated the mechanic\u2019s lien and contract claims. Additionally, the Biggses contended that Ambrose\u2019s failure to substantially complete the contract within the contractually required period entitled them to monetary damages and that Ambrose should be denied payment for extras because there was neither written evidence of the extras nor any agreement concerning their price. The court found, inter alia, that Ambrose\u2019s failure to file a proper sworn contractor\u2019s statement precluded the mechanic\u2019s lien claim; the Biggses\u2019 failure to comply with the Mechanics\u2019 Liens Act allowed Ambrose to recover on the contract claim; the Biggses could not recover damages for Ambrose\u2019s delay in completing the house; and the Biggses had waived the procedural requirements of the contractual provision addressing extras.\nBefore proceeding to the arguments raised by the parties, we note that the trial court\u2019s denial of Ambrose\u2019s mechanic\u2019s lien claim has not been contested on appeal. Therefore, we decline comment on that ruling and confine our decision to the contract claims raised.\nThe Biggses first contend that Ambrose\u2019s failure to provide a proper sworn contractor\u2019s statement precluded Ambrose from recovering damages on the contract and, therefore, the trial court erred in not dismissing both the mechanic\u2019s lien claim and the contract claim. Ambrose, without citation to any supporting legal authority, responds that the trial court correctly found that the Biggses had waived compliance with the mechanic\u2019s lien provision of the contract and Ambrose could therefore recover on the contract. We agree with the Biggses that the trial court should have also dismissed the contract claim.\nAt issue is whether a contractor can recover damages on a contract claim against an owner, despite the contractor\u2019s failure to provide a sworn contractor\u2019s statement as provided in section 5 of the Mechanics\u2019 Liens Act (Ill. Rev. Stat. 1983, ch. 82, par. 5). Section 5, which is applicable to every construction contract between an owner and a contractor, unequivocally imposes a duty on the contractor to give and the owner to require \u201ca statement in writing, under oath or verified by affidavit, of the names and addresses of the parties furnishing materials and labor, and of the amounts due or to become due each,\u201d before the owner shall be required to pay moneys due to the contractor. (Ill. Rev. Stat. 1983, ch. 82, par. 5.) In an action involving solely a mechanic\u2019s lien claim, the failure of both the owner and contractor to comply with section 5 has been held not to be a bar to a contractor\u2019s mechanic\u2019s lien claim. (Abbott Electrical Construction Co. v. Ladin (1986), 144 Ill. App. 3d 974.) The apparent rationale being that all subcontractors having a mechanic\u2019s lien on the property against which the foreclosure action is brought are necessary parties to the action (Anderson v. Gousset (1965), 60 Ill. App. 2d 309, 311), and, thus, their interests will be protected regardless of whether a contractor\u2019s statement is provided.\nIn the present case, however, we are concerned with a contract claim. Contrary to a mechanic\u2019s lien claim, subcontractors are not necessary parties to a contract claim between an owner and a contractor. As a result, in the context of a contract claim, an owner is not protected from potential subcontractors\u2019 claims unless a proper contractor\u2019s statement is provided. Consequently, an owner acts at the risk of valid subcontractors\u2019 claims when making payment to a contractor without the benefit of a contractor\u2019s statement. (Deerfield Electric Co. Inc. v. Herbert W. Jaeger & Associates, Inc. (1979), 74 Ill. App. 3d 380, 386.) On account of this substantial risk, the Biggses\u2019 refusal to make the final payment in the absence of a contractor\u2019s statement was justified in order to protect against potential subcontractors\u2019 lien claims. Thus, while the Biggses\u2019 failure to obtain a contractor\u2019s statement prior to making the first two payments on the contract subjected them to potential claims by subcontractors, we do not believe this unadvisable conduct served to waive subsequent protection provided by the contractor\u2019s statement requirement. For these reasons, the trial court erred in finding that Ambrose could recover on the contract claim.\nThe Biggses next contend that they should h\u00e1ve been awarded damages for Ambrose\u2019s delay in completing the house. The contract provided that the house would be substantially completed in six months. Ambrose did not finish working on the house until approximately five months after the scheduled completion date. The Biggses argue that the trial court erred in ruling that absent a liquidated damages clause, damages for delay are only recoverable in a commercial situation. Relying on Galbraith v. Chicago Architectural Iron Works (1893), 50 Ill. App. 247, and Korf v. Lull (1873), 70 Ill. 420, the Biggses assert that damages for delay in construction are recoverable regardless of the intended use or rentability of the building.\nIn Galbraith, the court awarded damages for delay in the construction of iron entrance arches to an office building. In awarding damages equal to the rental value of the building for the period of delay, the court stated that: \u201cNo inquiry as to what use the appellant had for the premises, is admissible, or whether he could or could not have rented them[;] *** [t]he rental value only is to be considered in estimating the damages.\u201d (Galbraith v. Chicago Architectural Iron Works (1893), 50 Ill. App. 247, 253.) Although the building in Galbraith was commercial, the court clearly indicated that a contractor\u2019s delay in constructing a residence entitles the owner to recover damages equal to the rental value for the period of delay. In Korf, our supreme court implicitly adopted this rule of law when it instructed the trial court that on remand, damages equal to the rental value of the house should be awarded for any unreasonable period of delay found to be attributable to the builder. Korf v. Lull (1873), 70 Ill. 420, 424.\nThe owner\u2019s right to recover damages for delay in the construction of a residence is consistent with the remedies available in contract cases. The owner has been denied the use of the building for the period of delay and should be compensated for the loss of use of the premises. (Potter v. Anderson (1970), 85 S.D. 142, _, 178 N.W.2d 743, 746; Morgan-National Woodworking Co. v. Cline (1949), 324 Mass. 15, 17, 84 N.E.2d 460, 461.) Fair rental value of the house has been recognized as the appropriate measure of damages. (Korf v. Lull (1873), 70 Ill. 420, 424; Gregory v. Weber (1981), 51 Or. App. 547, 552, 626 P.2d 392, 396.) Therefore, the trial court erroneously denied the Biggses damages for the delay in construction. Although the Biggses presented evidence of the rental value of the house, the trial court did not consider the parties\u2019 contentions concerning the period of delay attributable to Ambrose, and, therefore we must remand the cause to the trial court for further consideration of this issue.\nThe Biggses\u2019 final contention is that the trial court erred in entering judgment in favor of Ambrose for certain extras that were added to the house. The contract provided that any extras must be evidenced in writing and any adjustment in the contract price resulting from said extras shall be determined by mutual agreement of the parties before starting the work involved. The gist of the Biggses\u2019 argument is that Ambrose\u2019s failure to make timely demands for additional compensation and the absence of proof demonstrating that the Biggses agreed to pay for the extras precluded Ambrose from recovering payment for the extras in dispute.\nIn Watson Lumber Co. v. Guennewig (1967), 79 Ill. App. 2d 377, 389-90, this court held that a contractor seeking to recover for extras must establish by clear and convincing evidence that: (1) the extras were outside the scope of his original contractual promises; (2) the owner requested the extras; (3) the owner agreed to pay extra, either by words or conduct; (4) the contractor did not voluntarily proceed with the extra work; (5) the extras were not necessitated by reason of some default by the contractor. Here, it is not disputed that elements 1, 2, 4, and 5 were established by clear and convincing evidence. To be determined is whether or not the Biggses agreed to pay an additional amount for the extras.\nAs stated in Watson, an owner\u2019s agreement to pay for extras can be evidenced by either words or conduct. At least one of the Biggses was on the house site nearly every day of construction. They ordered the extras and did not object when Ambrose added the extras to the house. Under these circumstances it has been recognized that an owner impliedly agrees to pay a reasonable price for the extras. (Wingler v. Niblack (1978), 58 Ill. App. 3d 287, 289.) The trial court concluded that the standards in Watson were satisfied and entered judgment accordingly. However, recovery by Ambrose for extras is subject to the same infirmity present in his contract claim, namely, his failure to give the Biggses a sufficient contractor\u2019s statement. His claim for extras is therefore similarly barred.\nIn summary, the trial court erred in finding that Ambrose could recover on the contract and was entitled to compensation for the extras in dispute. The trial court erred in denying the Biggses damages for the delay in completion of the building. Because the trial court did not consider what period of delay was attributable to Ambrose, we remand for further consideration on this issue.\nFor the reasons stated herein, the judgment of the circuit court of Lake County is affirmed in part and reversed in part, and the cause is remanded for further proceedings consistent with this opinion.\nAffirmed in part; reversed and remanded in part.\nHOPF AND UNVERZAGT, JJ., concur.", "type": "majority", "author": "JUSTICE DUNN" } ], "attorneys": [ "Newton E. Finn, of Waukegan, for appellants.", "Michael A. Greenblatt, of Greenblatt & Greenblatt, of Waukegan, for ap-pellees." ], "corrections": "", "head_matter": "FELIX J. AMBROSE, d/b/a F. J. Ambrose Construction, et al., Plaintiffs-Appellees and Counterdefendants-Appellees, v. AUBREY F. BIGGS et al., Defendants-Appellants (Aubrey F. Biggs et al., Counterplaintiffs-Appellants).\nSecond District\nNo. 2\u201486\u20140095\nOpinion filed May 27, 1987.\nRehearing denied July 16, 1987.\nNewton E. Finn, of Waukegan, for appellants.\nMichael A. Greenblatt, of Greenblatt & Greenblatt, of Waukegan, for ap-pellees." }, "file_name": "0515-01", "first_page_order": 537, "last_page_order": 542 }