{ "id": 5110832, "name": "MANI ELECTRICAL CONTRACTORS, Plaintiff-Appellee, v. THEODOSIOS E. KIOUTAS et al., Defendants-Appellants", "name_abbreviation": "Mani Electrical Contractors v. Kioutas", "decision_date": "1993-02-19", "docket_number": "No. 1-92-2732", "first_page": "662", "last_page": "670", "citations": [ { "type": "official", "cite": "243 Ill. App. 3d 662" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "226 N.E.2d 270", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "79 Ill. App. 2d 377", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2564960 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/79/0377-01" ] }, { "cite": "336 N.E.2d 105", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "32 Ill. App. 3d 101", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2798582 ], "weight": 2, "pin_cites": [ { "page": "107" }, { "page": "108" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/32/0101-01" ] }, { "cite": "561 N.E.2d 1147", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "204 Ill. App. 3d 160", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2576534 ], "weight": 2, "pin_cites": [ { "page": "164" }, { "page": "164" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/204/0160-01" ] }, { "cite": "567 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "210 Ill. App. 3d 43", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2535338 ], "pin_cites": [ { "page": "46-47" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/210/0043-01" ] }, { "cite": "234 N.E.2d 358", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "90 Ill. App. 2d 15", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2897897 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/90/0015-01" ] }, { "cite": "428 N.E.2d 1069", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "101 Ill. App. 3d 817", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3080804 ], "weight": 2, "pin_cites": [ { "page": "819" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/101/0817-01" ] }, { "cite": "124 N.E.2d 615", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "4 Ill. App. 2d 428", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5132486 ], "weight": 4, "pin_cites": [ { "page": "431-32" }, { "page": "432-34" }, { "page": "433" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/4/0428-01" ] }, { "cite": "5 N.E.2d 269", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "287 Ill. App. 424", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5600337 ], "opinion_index": 0, "case_paths": [ "/ill-app/287/0424-01" ] }, { "cite": "571 N.E.2d 242", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "212 Ill. App. 3d 420", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2600594 ], "pin_cites": [ { "page": "422-23" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/212/0420-01" ] } ], "analysis": { "cardinality": 856, "char_count": 19131, "ocr_confidence": 0.776, "pagerank": { "raw": 1.2190006139823043e-07, "percentile": 0.5977501004884841 }, "sha256": "002945779416ee7e841567c2fc5ce2c571e8e261e17bf363dc4cdc30579ec4ff", "simhash": "1:cdda83ccac4e1d78", "word_count": 3095 }, "last_updated": "2023-07-14T20:55:01.285518+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MANI ELECTRICAL CONTRACTORS, Plaintiff-Appellee, v. THEODOSIOS E. KIOUTAS et al., Defendants-Appellants." ], "opinions": [ { "text": "JUSTICE RAKOWSKI\ndelivered the opinion of the court:\nThe subject of this appeal is an action brought by Mani Electrical Contractors (plaintiff) to foreclose its mechanic\u2019s lien on property owned by Theodosis E. Kioutas and Anna P. Kioutas (defendants).\nFollowing a trial, plaintiff was awarded $6,765.68 plus statutory interest of 5% from August 8, 1984, to the date of the order, July 19, 1991. We affirm.\nOn December 14, 1982, the City of Chicago issued a letter listing electrical violations relative to property owned by defendants at 54 East Scott, Chicago, Illinois. Defendants sought to remedy the violations, met with Angelo Poulos, president of plaintiff, and on February 13, 1984, the parties entered into a contract for the performance of specified electrical work.\nWhile plaintiff never applied for a permit to perform any work at 54 East Scott, a permit for that address was issued to Goulding Electric Company.\nThe plaintiff performed the electrical work on the building under the permit issued to Goulding and was paid $33,000 of the $45,000 contract price. Plaintiff sued to foreclose its mechanic\u2019s lien, alleging it was owed a $12,000 balance plus $5,000 for extras. Defendants filed a countercomplaint alleging breach of contract and negligence and sought to recover the cost of completion of the work, damages caused by plaintiff, and lost rentals in the amouiit of $53,000.\nDefendants present four issues on appeal: (1) whether the claim for the lien should be barred because plaintiff performed work under a permit issued to Goulding; (2) whether the court failed to address the issue of substantial performance and awarded damages correctly; (3) whether the court failed to address the issue of plaintiff\u2019s negligence; and (4) whether it was proper to award interest.\nIn Federal Land Bank v. Walker (1991), 212 Ill. App. 3d 420, 422-23, 571 N.E.2d 242, the court stated:\n\u201cMerely because a contract may violate some law or some regulation does not necessarily make that contract unenforceable. Contracts are unenforceable when the subject matter of the contract or the purpose of the contract violated the law. [Citations.] ***\nThe power to declare a contract illegal and unenforceable comes from two sources: (1) the common law, declared by courts; and (2) the legislative branch of government. An example of a contract that has been judicially declared illegal and unenforceable is a contract that is in restraint of trade. [Citations.] Examples of contracts that have been legislatively declared illegal and unenforceable are gambling contracts and contracts for prostitution. [Citations.]\nContracts declared illegal and unenforceable thus run the gamut from those that restrain economic freedom to those that are nefarious and immoral. From this, it is deduced that a declaration of illegality and unenforceability is principled upon a finding that the contract has a deleterious effect upon society as a whole.\u201d\nThe defendants argue that the trial court erred in finding that the plaintiff\u2019s claim was not barred because the plaintiff proceeded while in violation of various sections of the Chicago Municipal Code (Code). (Chicago Municipal Code \u00a7\u00a786 \u2014 16, 86 \u2014 37, 86 \u2014 38 (1984).) The defendants reason that because the plaintiff did not comply with these provisions, the plaintiff acted illegally and, therefore, is not entitled to enforce its lien. The defendants rely on three provisions of the Code that allegedly rendered the plaintiff\u2019s action unlawful. Section 86 \u2014 16 states:\n\u201cIt shall be unlawful for any person to engage in the business of electrical contractor, as herein defined, without being registered as an electrical contractor in the manner hereinafter set forth; provided, however, that if such person is already registered for the current year in another city or village within the state of Illinois, in conformity with the state statutes, such electrical contractor shall not be required to pay a registration fee in this city.\u201d (Chicago Municipal Code \u00a786 \u2014 16 (1984).)\nSection 86 \u2014 37 states:\n\u201cIt shall be unlawful for any person to install, alter, or repair any electrical wires or apparatus by authority of a permit issued to and for the use of some other person.\u201d (Chicago Municipal Code \u00a786-37 (1984).)\nSection 86 \u2014 38 states:\n\u201cIt shall be unlawful for any registered contractor to secure or furnish a permit for the installation, alteration, and repair of electrical wires and apparatus to any person not entitled to such permit under the electrical regulations of this electrical code.\u201d Chicago Municipal Code \u00a786 \u2014 38 (1984).\nIn his 29-page \u201cFindings of Fact, Opinion and Judgment,\u201d the trial judge stated that there was no testimony from any source that established that the arrangement was illegal or violative of any Chicago ordinance. On the contrary, there was testimony that Russell and two of Goulding\u2019s workmen were involved with the work. We, however, need not address this issue because we find that even if plaintiff\u2019s conduct did violate the Code, the contract is enforceable.\nThe defendants heavily rely on Bairstow v. Northwestern University (1936), 287 Ill. App. 424, 5 N.E.2d 269. In Bairstow, the land which plaintiff contracted to excavate for erection of a commercial building contained approximately five acres. A 60-foot x 125-foot segment of the property was zoned commercial, but the balance was zoned residential. While plaintiff obtained a permit covering the commercial property only, he excavated the entire parcel.\nThe defendant claimed that the work was done without securing a building permit as required by the Evanston building code and therefore the entire contract was void. The court found that because the plaintiff knew that a permit was necessary before doing the work he was precluded from enforcing a lien on the residential segment. However, the plaintiff was entitled to a lien for the work done on the commercial segment.\nBairstow is distinguishable from the present situation, however, because there the plaintiff knew he needed a permit for the residential segment, yet did not get one, whereas in the case sub judice, the plaintiff knew he needed a permit and got one, albeit under the Goulding name. More importantly, in Bairstow, the contract contemplated an illegal act (the excavation and erection of a commercial structure on residential property).\nIn another case cited by the defendants, Meissner v. Caravello (1955), 4 Ill. App. 2d 428, 124 N.E.2d 615, the defendants contended that the plaintiff\u2019s failure to obtain a building permit before commencement of the improvement made the contract illegal and, therefore, the plaintiff could not enforce its mechanic\u2019s lien. The court noted that\n\u201c[t]he contract itself contained no trace or suggestion of illegality. As stated by Williston in his work on Contracts [citation]: \u2018In general, unless a bargain necessarily contemplates an illegal act, it is not unenforceable, and if it is later performed in a way that involves some slight violation of law, not seriously injurious to the public order, the person performing may recover on his bargain. This principle may be stated more broadly: \u201cWhere a bargain does not in terms necessarily involve a violation of law, the fact that plaintiff performs it in a way not allowed by law, does not preclude recovery, if not seriously injurious to the public order.\u201d \u2019 There is similar language in 12 Am. Jur., Contracts, sec. 153, p. 647: \u2018Accordingly, where a contract could have been performed in a legal manner as well as in an illegal manner, it will not be declared void because it may have been performed in an illegal manner, since bad motives are never to be imputed to any man where fair and honest intentions are sufficient to account for his conduct. The rule has been stated to be that if an agreement can by its terms be performed lawfully, it will be treated as legal, even if performed in an illegal manner ***.\u2019 \u201d (Meissner, 4 Ill. App. 2d at 431-32.)\nThe court stated that the weight of authority holds that failure to obtain a building permit does not preclude recovery for work and materials furnished, and because the contract did not provide for or require the violation of any law, it was not illegal. (Meissner, 4 Ill. App. 2d at 432-34.) The court also noted that the building code does not prevent recovery if no permit is obtained, but does provide for penalties. Meissner, 4 Ill. App. 2d at 433.\nIn an attempt to distinguish Meissner, defendants note that there was nothing in the Meissner record to suggest that the plaintiff could not have obtained a permit, whereas sub judice the plaintiff could not have obtained a permit because it was not qualified to do so. Defendants\u2019 distinction, however, is one without a difference. The gravamen of Bairstow and Meissner is not whether one contractor as opposed to another could obtain a permit, but whether the issuance of a permit to anyone would be illegal. The question to be asked is whether the bargain necessarily contemplated an illegal bargain, not whether an otherwise legal contract is performed in a manner which involves a violation of the law.\nContrary to defendants\u2019 position is Lavine Construction Co. v. Johnson (1981), 101 Ill. App. 3d 817, 428 N.E.2d 1069. In Lavine, the plaintiff and defendant entered into a contract for building and electrical work. Defendant refused to sign a completion certificate. Plaintiff admitted that an electrical permit was not obtained. The defendant argued that the lack of a permit rendered the contract unenforceable. The trial court entered judgment for the contract price of $5,700. This was affirmed on appeal. The court stated that none of the provisions of the Code expressly prohibited the enforceability of contracts for failure to secure a required permit. (Lavine, 101 Ill. App. 3d at 819.) The court relied on the general rule stated in Meissner. This same principle was applied in South Center Plumbing & Heating Supply Co. v. Charles (1968), 90 Ill. App. 2d 15, 234 N.E.2d 358.\nWhile Bairstow does stand for the proposition that a contract is not enforceable in a situation where there was no legal way for anyone to obtain a permit, such is not the case sub judice. Accordingly, we reject defendants\u2019 contention and find the contract to be enforceable. Parenthetically, while it does not affect our decision, we note that, like plaintiff, the contractor the defendants subsequently hired to repair the alleged damage done by the plaintiff was not properly licensed by the City of Chicago.\nDefendants next contend that the trial court failed to address the issue of substantial performance. Defendants claim that the contract was not substantially performed, that the trial court did not determine the issue of substantial performance, and without this determination the trial court\u2019s decision is not understandable.\nThe court stated in Folk v. Central National Bank & Trust Co. (1991), 210 Ill. App. 3d 43, 46-47, 567 N.E.2d 1:\n\u201cAs a general rule, although a mechanic\u2019s lien claimant must show performance of the contract as a prerequisite to enforcement of the lien, substantial performance of the contract made in good faith will generally entitle the contractor to maintain his suit to enforce his lien. [Citation.] A contractor must prove that there was an honest and faithful performance of the contract in its material and substantial parts, with no willful departure from, or omission of, the essential elements of the contract. [Citation.] A contractor is not required to perform perfectly, but rather is held only to the duty of substantial performance in a workmanlike manner. [Citation.] What constitutes substantial performance is difficult to define, and whether substantial performance has been given will depend upon the relevant facts of each case. *** On appeal, the issue of whether there has been substantial performanc\u00e9 is a question of fact, and the trial court\u2019s resolution of this question will not be disturbed unless it is against the manifest weight of the evidence.\u201d\nThe manifest weight of the evidence is that which is the clearly evident, plain and indisputable weight of the evidence. (Duncan v. Cannon (1990), 204 Ill. App. 3d 160, 164, 561 N.E.2d 1147.) In order for a finding to be contrary to the manifest weight of the evidence, an opposite conclusion must be clearly apparent. Duncan, 204 Ill. App. 3d at 164.\nA party is entitled to recover for the work furnished under the contract, subject to any deductions by way of setoff for completing and correcting the work. (Royal Ornamental Iron, Inc. v. Devon Bank (1975), 32 Ill. App. 3d 101, 107, 336 N.E.2d 105.) The measure of damages is the difference between the total reasonable cost of securing performance and the contract price. Royal Ornamental Iron, Inc., 32 Ill. App. 3d at 108.\nIn the case sub judice, Poulos, the president of plaintiff, and Russell, owner of Goulding Electrical Construction, testified on behalf of the plaintiff. Guagliardo, the inspector for the City of Chicago, Cannataro, who owns electrical construction businesses, and Mikolajczyk, defendants\u2019 expert who was a registered architect, registered professional engineer, and an architectural consultant, all testified for the defendants.\nThe city inspector testified that not all items listed in the violations letter sent to the defendants by the city had been completed at the time of his inspection, but that he approved the work as it was proceeding, the work was ongoing, and \u201c[a]ll up to that point was done in accord with the Code and in a workmanlike manner.\u201d The trial court further noted that defendants\u2019 expert stated that 60% of the electrical work that was required under the contract was done in accord with the Code and the contract. Cannataro, the contractor who allegedly did renovating work in all fourth-floor apartments after the plaintiff left the job, could not specify as to the cost of what he did by way of repair or completion of the alleged defects. The trial court noted that the expert\u2019s report and opinion regarding the violations of the fourth floor were \u201can unlikely appropriate basis for finding Plaintiff\u2019s work on the 4th floor unworkmanlike or in violation of the Chicago Building Code since his inspection was made subsequent\u201d to complete remodeling of that floor after plaintiff left the premises.\nSimilarly, the trial court noted in its written order that the city inspector\n\u201cmade a number of inspections while Plaintiff\u2019s work was in progress and did not find any Code violations and the fact that the building was not cited.for any violations from the time when Plaintiff stopped working until the time this case was being heard also dulls the impact of such assertion. On the other hand, Plaintiff\u2019s admitted refusal to complete the work indicated there were \u2018loose ends\u2019 whether \u2018minor\u2019 as contended by Plaintiff\u2019s attorney in his closing argument or major as the defense would have this Court believe does leave room for level-ling the charge of \u2018work was not done in a workmanlike manner.\u2019 \u201d\nDefendant Kioutas contended it was plaintiff\u2019s duty to clean up the premises, but admitted that she could not point out in the contract where this was stated. Mrs. Kioutas later admitted that part of her janitor\u2019s job was to do the cleanup work. Mrs. Kioutas also admitted the building was never cited for any violations since plaintiff terminated his work on the premises in 1984.\nRussell, president of Colliding, testified that everything in the contract was done except for a punch list. The trial court noted that the existence of a \u201cpunch list\u201d indicated that not all was done according to the contract. As such, the plaintiff could not recover full and final payment because the contract stated that \u201c(w)hen the job is completed TOTAL BALANCE IS TO BE PAID IN FULL AMOUNT OF $15,000.\u201d Plaintiff admitted that he had been paid $33,000 of the $45,000 contract price. The trial court considered that plaintiff was entitled to any funds left after defendant subtracted from the $15,000 any charges paid to the contractor who finished the punch list items and any other defective work of the plaintiff.\nThe testimony presented showed that Cannataro\u2019s estimate to correct deficiencies and finish the work was $2,750. Therefore, the plaintiff was entitled to $9,250 ($12,000 - $2,750 = $9,250). The trial court found that the evidence supported the defendants\u2019 counterclaim only to the extent of $1,775. There were also payments made to repair damage and for other services. The defendants\u2019 total expenditures amounted to $5,234.22. As such, the plaintiff was entitled to \u201c$6765.68 [sic] ($12,000 - $5,234.22 = $6,765.78).\nThese findings of the trier of fact were detailed and specific. It was for the trial court to draw conclusions regarding the witnesses\u2019 credibility, and the trial court apparently concluded that the evidence showed that the plaintiff had substantially performed under the contract. There is substantial evidence in the record to support the trial court\u2019s findings. Accordingly, the judgment is not against the manifest weight of the evidence and will not be disturbed on appeal.\nBecause we conclude that the record supports the finding that plaintiff substantially completed the contract in a workmanlike manner, defendants\u2019 contention that the trial court failed to address the issue of plaintiff\u2019s negligence is without merit.\nAlso without merit is defendants\u2019 contention that interest should not have been awarded under the facts of this case. The language of the mechanic\u2019s liens statute is unambiguous and provides that a contractor shall have a lien for the amount due from the service, material and labor furnished \u201cand interest from the date the same is due.\u201d (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 82, par. 1.) It was upon this statute that the trial court awarded interest.\nDefendants rely solely on Watson Lumber Co. v. Guennewig (1967), 79 Ill. App. 2d 377, 226 N.E.2d 270, a case dealing with former section 2 of the interest statute (Ill. Rev. Stat. 1965, ch. 74, par. 2), now included in banking and finance (Ill. Rev. Stat. 1991, ch. 17, par. 6402), which provides for interest \u201con money withheld by an unreasonable and vexatious delay of payment.\u201d The Watson Lumber court, in reversing the trial court\u2019s award of interest, held that because the dispute was substantial and in good faith, the delay in payment was not unreasonable or vexatious.\nBecause the trial court\u2019s award of interest sub judice was based upon the mechanic\u2019s lien statute (Ill. Rev. Stat. 1983, ch. 82, par.1), Watson Lumber has no application. Nor do defendants set forth any reason why the mechanic\u2019s lien statute does not apply. For all of the foregoing reasons, the judgment of the trial court is affirmed.\nAffirmed.\nMcNAMARA, P.J., and GIANNIS, J., concur.", "type": "majority", "author": "JUSTICE RAKOWSKI" } ], "attorneys": [ "Elsie G. Holzwarth, of Chicago, for appellants.", "Nicholas C. Syregelas, of Chicago, for appellee." ], "corrections": "", "head_matter": "MANI ELECTRICAL CONTRACTORS, Plaintiff-Appellee, v. THEODOSIOS E. KIOUTAS et al., Defendants-Appellants.\nFirst District (6th Division)\nNo. 1\u201492\u20142732\nOpinion filed February 19, 1993.\nRehearing denied April 7, 1993.\nElsie G. Holzwarth, of Chicago, for appellants.\nNicholas C. Syregelas, of Chicago, for appellee." }, "file_name": "0662-01", "first_page_order": 682, "last_page_order": 690 }