{ "id": 2607008, "name": "VINCENT DiVITO, INC., Plaintiff-Appellant, v. VOLLMAR CLAY PRODUCTS COMPANY, Defendant-Appellee and Third-Party Plaintiff (Armco, Inc., Third-Party Defendant)", "name_abbreviation": "Vincent DiVito, Inc. v. Vollmar Clay Products Co.", "decision_date": "1989-02-03", "docket_number": "No. 87\u20143286", "first_page": "325", "last_page": "330", "citations": [ { "type": "official", "cite": "179 Ill. App. 3d 325" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "409 N.E.2d 372", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "87 Ill. App. 3d 1047", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3178749 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/87/1047-01" ] }, { "cite": "413 N.E.2d 209", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "90 Ill. App. 3d 768", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3161433 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-app-3d/90/0768-01" ] }, { "cite": "411 N.E.2d 936", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "944-45" } ], "opinion_index": 0 }, { "cite": "89 Ill. App. 3d 498", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5539612 ], "pin_cites": [ { "page": "510" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/89/0498-01" ] }, { "cite": "250 N.E.2d 666", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "pin_cites": [ { "page": "671" } ], "opinion_index": 0 }, { "cite": "111 Ill. App. 2d 235", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1593003 ], "year": 1980, "pin_cites": [ { "page": "244" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/111/0235-01" ] }, { "cite": "311 N.E.2d 138", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "140" } ], "opinion_index": 0 }, { "cite": "57 Ill. 2d 120", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5407295 ], "pin_cites": [ { "page": "124" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/57/0120-01" ] }, { "cite": "337 N.E.2d 387", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "389" } ], "opinion_index": 0 }, { "cite": "32 Ill. App. 3d 941", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2798361 ], "pin_cites": [ { "page": "944" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/32/0941-01" ] }, { "cite": "318 N.E.2d 722", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "pin_cites": [ { "page": "724" } ], "opinion_index": 0 }, { "cite": "23 Ill. App. 3d 137", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2503996 ], "year": 1975, "pin_cites": [ { "page": "139" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/23/0137-01" ] }, { "cite": "415 N.E.2d 397", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "pin_cites": [ { "page": "402" } ], "opinion_index": 0 }, { "cite": "83 Ill. 2d 388", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5472743 ], "year": 1986, "pin_cites": [ { "page": "398" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/83/0388-01" ] }, { "cite": "500 N.E.2d 454", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "455" } ], "opinion_index": 0 }, { "cite": "148 Ill. App. 3d 1075", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3642503 ], "weight": 2, "pin_cites": [ { "page": "1077" }, { "page": "1077" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/148/1075-01" ] } ], "analysis": { "cardinality": 589, "char_count": 10997, "ocr_confidence": 0.749, "pagerank": { "raw": 2.424344534004883e-07, "percentile": 0.8013245173753373 }, "sha256": "9727d200e20db0ebddb2cbf7e72717e470b72c93e060e222209b8b7f9ba8907f", "simhash": "1:76d25c7f3e08a24c", "word_count": 1770 }, "last_updated": "2023-07-14T20:22:52.001106+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "VINCENT DIVITO, INC., Plaintiff-Appellant, v. VOLLMAR CLAY PRODUCTS COMPANY, Defendant-Appellee and Third-Party Plaintiff (Armco, Inc., Third-Party Defendant)." ], "opinions": [ { "text": "JUSTICE COCCIA\ndelivered the opinion of the court:\nPlaintiff, Vincent DiVito, Inc., appeals from: (1) the denial of its motion for summary judgment on a cause of action seeking promissory estoppel; (2) the granting of defendant Vollmar Clay Products Company\u2019s cross-motion for summary judgment on DiVito\u2019s promissory estoppel cause of action; and (3) the granting of Vollmar\u2019s cross-motion for summary judgment on DiVito\u2019s cause of action for breach of contract.\nWe affirm the denial of DiVito\u2019s motion seeking summary judgment on its promissory estoppel count; reverse the entry of summary judgment in Vollmar\u2019s favor on DiVito\u2019s promissory estoppel count; and affirm the entry of summary judgment in Vollmar\u2019s favor on DiVito\u2019s breach of contract count. We do so for the following reasons.\nIn November 1982, the Village of Palatine (Village) solicited bids for a federally funded sewer construction project. DiVito desired to be the general contractor for the Village on this project. Vollmar, a distributor of piping materials, entered into these negotiations -with the hope of becoming DiVito\u2019s subcontractor in the event the latter was awarded the contract. As part of these negotiations, Vollmar quoted prices to DiVito. On February 14, 1983, DiVito submitted a bid to Palatine, which included Vollmar\u2019s prices. DiVito was the low bidder and Palatine announced that it was awarding it the contract. On March 15, 1983, Vollmar sent DiVito a price list, guaranteeing that the quoted prices would be \u201cgood until 12-31-85,\u201d the expected completion date of the project. The second low bidder filed a protest on March 21, 1983, contesting the award.\nOn August 8, 1983, while the bid protest was being litigated, Vollmar was notified by its supplier, Armco, Inc., that piping prices were rising (Vollmar has filed a third-party action against Armco, which is not relevant to this appeal). Vollmar, in turn, notified DiVito that it was withdrawing the March price quotation. On October 6, 1983, the bid protest was resolved in DiVito\u2019s favor by the Federal district court. At DiVito\u2019s request, Vollmar submitted a new price list in November 1983. In December 1983, DiVito and Palatine entered into a contract for the project. DiVito, however, placed its order for piping with a competitor of Vollmar.\nOn May 29, 1985, DiVito filed a two-count complaint against Vollmar, seeking to recover the difference between the price of the piping ultimately ordered and the price quoted by Vollmar in March 1983. Count I of the complaint avers that Vollmar breached an oral contract with DiVito; count II seeks to estop Vollmar from denying its promise to supply piping at the prices quoted in March 1983, given DiVito\u2019s reliance thereon.\nOn December 15, 1986, DiVito moved for summary judgment upon count II of its complaint, which sounded in promissory estoppel. On June 10, 1987, following a hearing, the motion was denied. Subsequently, Vollmar filed a cross-motion for summary judgment directed against count II of DiVito\u2019s complaint, as well as count I, which sounded in breach of contract. On September 21, 1987, Vollmar\u2019s cross-motion was heard, along with DiVito\u2019s motion for reconsideration of the court\u2019s denial of its motion for summary judgment seeking promissory estoppel. At this hearing, the circuit court denied DiVito\u2019s motion and granted Vollmar\u2019s cross-motion.\nThe purpose of summary judgment is to determine the presence or absence of triable issues of fact. (Amin v. Knape & Vogt Co. (1986), 148 Ill. App. 3d 1075, 1077, 500 N.E.2d 454, 455.) In determining whether the moving party is entitled to summary judgment, the pleadings, depositions, admissions, and affidavits should be construed strictly against the movant and liberally in favor of the opponent. (Kolakowski v. Voris (1980), 83 Ill. 2d 388, 398, 415 N.E.2d 397, 402.) If the facts allow for more than one conclusion or inference, including one unfavorable to the movant, the motion should be denied. In short, the right of the moving party must be clear and free from doubt. Amin v. Knape & Vogt Co. (1986), 148 Ill. App. 3d 1075, 1077, 500N.E.2d 455, 456.\nIn light of these guiding principles, the entry of summary judgment in Vollmar\u2019s favor on DiVito\u2019s promissory estoppel claim must be reversed. The elements of promissory estoppel are: a promise unambiguous in terms, with reliance thereon by the promisee, with such reliance being expected and foreseeable by the promisor, and with the promisee in fact relying on the promise to his injury. (S.M. Wilson & Co. v. Prepakt Concrete Co. (1974), 23 Ill. App. 3d 137, 139, 318 N.E.2d 722, 724.) The underlying purpose of the doctrine of promissory estoppel is to protect innocent parties. Accordingly, in order to invoke the doctrine, the promisee\u2019s reliance must be reasonable and justifiable. S.N. Nielsen Co. v. National Heat & Power Co. (1975), 32 Ill. App. 3d 941, 944, 337 N.E.2d 387, 389.\nAs to count II of DiVito\u2019s complaint, we conclude that there is a triable issue of fact concerning whether its reliance upon Vollmar\u2019s price guarantee was reasonable in view of the custom and usage in the construction trade regarding such guarantees. Paragraph 4 of count I of DiVito\u2019s complaint, incorporated by reference into count II, alleged:\n\u201cDuring the week of February 7, 1983, while DiVito was preparing its bid for the Palatine Project, Vollmar contacted DiVito and offered to supply to DiVito various materials for the Palatine Project. In particular, Vollmar agreed that, if DiVito was awarded the Palatine Project, Vollmar would sell to DiVito certain truss pipe, plastic pipe, fittings, and appurtenances at the prices set forth on Exhibit A hereto, and that such prices would be \u2018good until 12-31-85.\u2019 (See Exhibit A, p. 7).\u201d\nVollmar answered: \u201cDefendant admits the allegations of paragraph 4. Vollmar\u2019s proposal was in accord with custom and usage in the trade.\u201d\nVollmar argues that this admission is irrelevant, because it was not reasonable for DiVito to rely upon a guarantee unsupported by consideration. Consideration is not an element of promissory estoppel (see Bank of Marion v. Robert \u201cChick\u201d Fritz, Inc. (1974), 57 Ill. 2d 120, 124, 311 N.E.2d 138, 140), and Vollmar does not contend to the contrary. However, to hold that consideration is decisive in determining whether reasonable reliance is present would, in effect, make consideration an element of promissory estoppel in construction cases. We are unwilling to go so far, absent clearer evidence of construction industry practices. If Vollmar is wrong about custom and usage, our acceptance of its argument could have serious consequences for the industry.\nAfter raising the issue of custom and usage in its answer, Vollmar was bound to show that DiVito\u2019s reliance on the price guarantee was unreasonable, given such custom and usage, if it wished to prevail upon a motion for summary judgment. Yet there is coilflicting testimony in the record on this issue. Armco\u2019s sales representative, Richard Rogers, testified in his deposition that under prevailing custom in the construction industry, a contractor cannot rely on a quoted price after an order has been delayed 60 to 90 days, even if the price was guaranteed. But Joe Schulenburg, Vollmar\u2019s president, testified in his deposition that the guarantee was included because Vollmar wanted to protect the job until it was complete. According to Schulenburg, DiVito did not request the December 31, 1985, date. This fact is confirmed by the deposition testimony of Benedetto DiVito, DiVito\u2019s president. When construed against Vollmar, the testimony of Schulenburg and DiVito gives rise to an inference that it is reasonable to rely upon such guarantees in the construction trade.\nJust as this conflicting testimony leads to the conclusion that the circuit court erred by entering summary judgment in Vollmar\u2019s favor on count II (promissory estoppel), of DiVito\u2019s complaint, it also leads to the conclusion that the circuit court did not err by refusing to enter summary judgment in DiVito\u2019s favor on count II.\nWe conclude that the circuit court correctly granted summary judgment in Vollmar\u2019s favor on count I of DiVito\u2019s complaint, which purported to state a cause of action for breach of contract. To create an enforceable contract, there must be an unequivocal acceptance. (Lee Shell Co. v. Model Food Center, Inc. (1969), 111 Ill. App. 2d 235, 244, 250 N.E.2d 666, 671.) There can be no contract where the offeror cannot reasonably treat the offeree\u2019s response as an acceptance. McCarthy v. Verson Allsteel Press Co. (1980), 89 Ill. App. 3d 498, 510, 411 N.E.2d 936, 944-45.\nAt his discovery deposition, Benedetto DiVito also testified that he told Vollmar\u2019s dispatcher, Michael Anton, that the prices submitted by Vollmar were the \u201clow numbers\u201d and that DiVito was \u201cgoing to use your number\u201d in the bid. These statements fall short of an unequivocal acceptance, and it would have been unreasonable for Vollmar to treat them as such. The circuit court rightly observed that Vollmar could not have enforced an oral contract against DiVito on the basis of these statements alone.\nDiVito relies upon the cases of Illinois Valley Asphalt, Inc. v. J.F. Edwards Construction Co. (1980), 90 Ill. App. 3d 768, 413 N.E.2d 209, and A.J. Davinroy Plumbing & Heating v. Finis P. Ernest, Inc. (1980), 87 Ill. App. 3d 1047, 409 N.E.2d 372, to support its contention that the circuit court erred in granting Vollmar\u2019s motion for summary judgment on count I (although it is noteworthy that DiVito did not press this claim in its reply brief or at oral argument). But these cases are distinguishable. In Illinois Valley, the plaintiff proceeded upon a theory of promissory estoppel, not a contract theory. And, the testimony in that case (words to the effect that if the plaintiff got the job, then the defendant would get the job) was less equivocal than the testimony in this case. In Davinroy, the testimony which led the trial court to conclude that an oral contract had been entered into is not set forth in the opinion.\nIn conclusion, we remand this case to the circuit court for trial on DiVito\u2019s promissory estoppel claim, as set forth in count II of its complaint, and the issue of whether it was reasonable for DiVito to rely upon Vollmar\u2019s price guarantee, given the custom and usage in the construction trade. The judgment of the circuit court is affirmed in all other respects.\nAffirmed in part; reversed in part and remanded.\nMURRAY, P.J., and PINCHAM, J., concur.", "type": "majority", "author": "JUSTICE COCCIA" } ], "attorneys": [ "Gerald L. Angst, Richard J. O\u2019Brien, and Gerard D. Kelly, all of Sidley & Austin, of Chicago, for appellant.", "Torshen, Schoenfield & Spreyer, Ltd., of Chicago (Jerome H. Torshen, Abigail K. Spreyer, and James K. Genden, of counsel), for appellee." ], "corrections": "", "head_matter": "VINCENT DIVITO, INC., Plaintiff-Appellant, v. VOLLMAR CLAY PRODUCTS COMPANY, Defendant-Appellee and Third-Party Plaintiff (Armco, Inc., Third-Party Defendant).\nFirst District (5th Division)\nNo. 87\u20143286\nOpinion filed February 3, 1989.\nGerald L. Angst, Richard J. O\u2019Brien, and Gerard D. Kelly, all of Sidley & Austin, of Chicago, for appellant.\nTorshen, Schoenfield & Spreyer, Ltd., of Chicago (Jerome H. Torshen, Abigail K. Spreyer, and James K. Genden, of counsel), for appellee." }, "file_name": "0325-01", "first_page_order": 347, "last_page_order": 352 }