{ "id": 2798282, "name": "George F. Mueller & Sons, Inc., Plaintiff-Appellant, v. Northern Illinois Gas Company, Defendant-Appellee", "name_abbreviation": "George F. Mueller & Sons, Inc. v. Northern Illinois Gas Co.", "decision_date": "1975-09-12", "docket_number": "No. 60322", "first_page": "249", "last_page": "255", "citations": [ { "type": "official", "cite": "32 Ill. App. 3d 249" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "98 N.E.2d 722", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "409 Ill. 131", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5310808 ], "pin_cites": [ { "page": "136" } ], "opinion_index": 0, "case_paths": [ "/ill/409/0131-01" ] }, { "cite": "283 Ill.App. 77", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3207412 ], "opinion_index": 0, "case_paths": [ "/ill-app/283/0077-01" ] }, { "cite": "5 N.E.2d 868", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "288 Ill.App. 174", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3245889 ], "opinion_index": 0, "case_paths": [ "/ill-app/288/0174-01" ] }, { "cite": "289 N.E.2d 471", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "8 Ill.App.3d 190", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2764438 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/8/0190-01" ] }, { "cite": "314 N.E.2d 219", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "20 Ill.App.3d 450", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5348297 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/20/0450-01" ] }, { "cite": "154 N.E.2d 867", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "19 Ill. App.2d 554", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5190043 ], "pin_cites": [ { "page": "561" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/19/0554-01" ] }, { "cite": "299 N.E.2d 601", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "12 Ill.App.3d 362", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2852671 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/12/0362-01" ] } ], "analysis": { "cardinality": 686, "char_count": 14889, "ocr_confidence": 0.735, "pagerank": { "raw": 2.8772103280846195e-07, "percentile": 0.8432680824248827 }, "sha256": "ceff82e1bab6e21c9b3858ef094481bf09d23f03c2432003cb2db7104141c4ef", "simhash": "1:6ff749e6b7ce886d", "word_count": 2360 }, "last_updated": "2023-07-14T16:14:58.460223+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "George F. Mueller & Sons, Inc., Plaintiff-Appellant, v. Northern Illinois Gas Company, Defendant-Appellee." ], "opinions": [ { "text": "Mr. JUSTICE SULLIVAN\ndelivered the opinion of the court:\nThis is an appeal from an order entered in favor of defendant, finding that plaintiff had failed to prove by a preponderance of the evidence that it had adequately performed its duties under a contract to install, service and maintain vending machines. This was the only issue unresolved following our former opinion in this matter (see George F. Mueller & Sons, Inc. v. Northern Illinois Gas Co., 12 Ill.App.3d 362, 299 N.E.2d 601), wherein we held that a valid and binding contract existed between the parties and that the trial court had therefore erred in entering judgment for defendant on the grounds of formal defects in the contract. We remanded the cause so that the trial court might rule on defendant\u2019s remaining contention that plaintiffs action should fail because it did not prove it had adequately performed all the conditions of the contract. We briefly review the facts as they appear in the record and a bystander\u2019s report of the trial proceedings.\nPlaintiff contracted to install vending machines at three of defendant\u2019s offices and to maintain and service said machines. Defendant was to receive a percentage of sales from the machines as a commission. Paragraph two of the agreement provided:\n\u201cAfter installations [sic] the Operator agrees during said period to maintain and service the above machines as often as the Proprietor notifies the Operator such maintenance and service is required and will keep said machines in proper operating condition when so notified. The Operator agrees during said period to keep said machines stocked with standard products sold through said machines. Proprietor agrees that the Operator shall not be in default unless and until the Proprietor has served a written demand on the Operator for maintenance, service or products.\u201d\nThe contract term began on November 17, 1969, and was to run for a period of three years. On April 8, 1970, defendant\u2019s employee (Morphey) wrote plaintiff a letter, stating that the Company was \u201cextremely unhappy with the vending machine service you are allegedly providing us\u201d and that, despite telephone complaints to plaintiff and visits by plaintiffs representative, \u201cconditions have not improved.\u201d The letter then listed numerous failings in plaintiffs service, including its failure to repair machines or to restock machines, its restocking of machines with stale food, the presence of cockroaches in one machine, and the fact that no commission on sales was paid from the inception of the contract. Morphey\u2019s letter further stated that written notice had been sent to plaintiffs representative (Smith) on February 20, complaining of stale rolls and candy, that the situation had not improved and that, in fact, one employee had recently purchased a roll which had become moldy. Defendant\u2019s letter concluded with a demand that plaintiff remove its machines from defendant\u2019s premises not later than April 15, 1970. Plaintiff responded in a letter, dated the following day, wherein he chose to treat the contract as remaining in full force and effect and either denied or promised to investigate each of defendant\u2019s complaints. A check for commissions was enclosed. No further communication between the parties appears to have occurred. Plaintiff then brought this action against defendant for breach of contract.\nThe record is devoid of a transcript of the original hearing. The parties, however, had submitted a bystander\u2019s record of the proceedings in the prior appeal which, however, is abstract in form and very sketchy. In any event, we glean from it that plaintiff first called A. J. Morphy, defendant\u2019s division personnel director, who testified that he had received plaintiffs reply letter dated April 9, 1970, with the enclosed commission check. Thereafter, plaintiff called a number of its employees who testified as follows:\nJames Dorr, employed to service plaintiffs machines, said that he had serviced the accounts of defendant in its Palos and Crestwood Heights offices during the months of January, February and March of 1970; that he checked and filled the vending machines every other week; that the machines were in good mechanical condition and stocked with fresh new merchandise; and that he had not received any complaints on service.\nStanley Zych, a coffee routeman, said that he serviced machines at the same locations as Dorr; that the condition of the machines was good; that a machine at one location did not give proper change, but he continued to service that machine \u201cuntil he found it disconnected.\u201d\nGary Metke testified that he serviced a candy machine and two cigarette machines at defendant\u2019s Glenwood location during a five-month period; that he had received complaints about empty machines which he reported to the office; \u201cthat he was not told later that the complaints had not been remedied.\u201d\nRonald Hric, a coffee routeman, said that he serviced defendant\u2019s Glen-wood location; that he had received complaints about the coffee machine which he reported to his home office; that \u201che was not told the complaints were not taken care of.\u201d\nRichard Page, a repairman, said that he serviced machines in response to complaints at defendant\u2019s premises in Glenwood and Crestwood; that he had received no calls to service or repair machines at defendant\u2019s Palos Heights offices. He described his duties and stated that \u201ceach time he left a job site, the machine would be working.\u201d\nLeland Smith, plaintiff\u2019s manager, said he had negotiated the contract in question and had discussions with Leland Schmitz, an employee of defendant, concerning a service plan. On cross-examination, Smith testified that through his office he received complaints from defendant and had visited defendant\u2019s employee (Morphey) concerning them. He stated that it was his understanding that defendant was to be paid its commissions monthly and that when he heard plaintiff might lose defendant\u2019s account, he went to their Glenwood office to discuss the matter. When the results of his visit there did not improve the situation, \u201che went to defendant\u2019s general office and asked to see the president, but he was referred to a vice-president .with whom he discussed the problems.\u201d However, \u201che was unable to do any good.\u201d\nPlaintiff then called Kenneth Schmitz as an adverse witness. He was the senior personnel representative at defendant\u2019s Glenwood office, and he testified that he had signed the contract for plaintiff\u2019s services; that he patronized plaintiff\u2019s machines and, while he characterized their operation as \u201cmostly good,\u201d his office had received complaints concerning them at least once a day; that his secretary reported to him that between December 1 and April 17 at least 30 calls had been made to plaintiff for service in response to complaints by defendant\u2019s employees.\nJoanne Prather, plaintiff\u2019s general office manager, testified that she had prepared a commission statement and computed the amount of the commission check tendered to defendant which was dated April 9, 1970. This check was in the amount of $260.42 and was apparently the first check received by defendant from plaintiff since the inception of the contract in November of 1969.\nArcher Mueller, plaintiff\u2019s vice-president, testified that the company telephones were ringing continuously with customers\u2019 complaints; that plaintiff employed roving mechanics who were on the street at all times to service machines, including those at defendant\u2019s places of business; that \u201che himself had sent out a truck to pick up a machine and change it\" for defendant; that \u201che had purchased nine machines worth five to seven thousand dollars\u201d for defendant\u2019s account; that there was a complaint that commissions had not been paid, and he directed that a check be prepared in payment thereof.\nDefendant then recalled Kenneth Schmitz, signer of the contract, who denied that he ever had any authority to bind the Company to the contract, and this testimony was then corroborated by Mr. Morphy, the personnel director, of defendant. The court then entered its ruling that because no authority existed by which Schmitz could bind defendant, the contract was unenforceable against defendant and further that it was unenforceable under the Statute of Frauds. On appeal, this court reversed that finding and, on remand, after reexamining its trial notes and after considering the argument of counsel for both parties, the trial court found that plaintiff had not substantially fulfilled his obligations under the contract and entered judgment for defendant. Plaintiff appeals this finding.\nOpinion\nThe only question before this court is the correctness of the trial court\u2019s determination that plaintiff had not sufficiently fulfilled his contract with defendant. Such a determination, if correct, would bar plaintiff from any recovery; since, as stated in Archibald v. Board of Education, 19 Ill. App.2d 554, 561, 154 N.E.2d 867, 870:\n\u201cIt is a fundamental principle of the law that, in order for one to recover upon a contract, he must have performed his part of the contract.\u201d\nWhether a contract has been performed according to its terms is a question of fact (Ralph v. Karr Manufacturing Co., 20 Ill.App.3d 450, 314 N.E.2d 219), and this court will not disturb the trier of fact\u2019s determination unless the finding is against the manifest weight of the evidence or the verdict is unsupported by any evidence whatsoever. Dorweiler v. Gleim, 8 Ill.App.3d 190, 289 N.E.2d 471.\nPlaintiff, however, contends that under paragraph 2 of the contract it could not be held in default on the contract until it had received a written demand for maintenance, service or products from defendant, that the letter dated April 8, 1970, received from defendant was not a demand for performance but, rather, a notice of termination. Therefore, plaintiff argues that, absent a written demand, it could not be held to have defaulted on the covenants of the contract.\n- In this regard, we note that the April 8 letter of defendant\u2019s employee \u2022 (Moiphey) offered by plaintiff and admitted into evidence as its Exhibit 3, stated that a letter of complaint had been sent on February 20 regarding stale candy and rolls and that the situation had not, been remedied. Thus, it would appear from plaintiffs exhibit that a written demand for service had been made. In any event, the rule is well settled that a party cannot sue for breach of contract without alleging and proving that he has himself substantially complied with all the material terms of the agreement and where, following a breach by one party, the other party seeks to keep the contract in force and recover thereon, he must allege and prove performance on his own part or a legal excuse for nonperformance (Banik v. Bishop-Stoddard Cafeteria Co., 288 Ill.App. 174, 5 N.E.2d 868; Hutchison v. Bankers Life Co., 283 Ill.App. 77; 12 Ill. L.&Pr. Contracts \u00a7 452.) Thus, it has been said in Christopher v. West, 409 Ill. 131, 136, 98 N.E.2d 722, 725:\n\u201cThe party who insists upon performance by the other party must show performance on his part, while he who desires to rescind the contract need only show nonperformance or inability to perform by the other.\u201d\nWe believe plaintiff misconstrues the language of the contract. Regardless of the term \u201cdefault\u201d in the contract, we believe a plaintiff who seeks to enforce the contract must still sustain his burden of proving that he has substantially complied with all material terms of the agreement. We are of the opinion that the language concerning default looked toward the eventuality of a suit for rescission wherein a proprietor sues the machine vendor. The language of paragraph two would preclude a proprietor from rescinding the contract until he had made a written demand of the machine vendor for maintenance or service. Here, the suit is not brought by a proprietor seeking to rescind but, rather, by the machine vendor seeking to enforce the contract. As such, the general rule pertains which requires the plaintiff to establish its performance.\nIn the instant case, the trial court had before it plaintiff\u2019s Exhibit 3, the Morphey letter, which complained of the malfunctioning of plaintiffs machines, of their unsanitary condition, of plaintiffs failure to restock the machines, and of their being restocked with stale food. Plaintiff\u2019s reply letter contained only general denials of these charges or promises to investigate them. Additionally, defendant\u2019s employee (Schmitz) testified that he received at least one complaint per day about the machines. Plaintiffs vice-president (Mueller) testified that the telephones in his office were constantly ringing with customer\u2019s complaints and, although he testified-that plaintiff employed roving mechanics to service its machines and that he did so for the machines installed on defendant\u2019s premises, he gave no specific instances of any servicing of defendant\u2019s complaint or examples of any service given defendant other than the fact that one machine had been exchanged.\nFurther, two of plaintiffs employees (Metke and Hric) testified that they received complaints from defendant concerning the machines and reported them to plaintiffs office, but could not testify as to whether these complaints had been remedied. Another of plaintiffs employees (Zych) testified that the machines he serviced were in good condition, even though his testimony also included a statement that one machine did not give proper change and had been disconnected. Furthermore, while plaintiffs employee (Dorr) testified that he serviced machines in Crestwood and Palos Heights and received no complaints, another of plaintiffs employees (Page) testified that he had in fact serviced machines at the Crestwood Heights location in response to complaints. Finally, it is undisputed that plaintiff did not tender defendant a check for the commissions accrued until after defendant had stated its intention to terminate the contract.\nIn summary, the evidence shows a number of complaints made by defendant concerning plaintiffs failure to fulfill its contractual obligations and, by contrast, reveals only a few general and contradictory denials of those allegations by plaintiff. These presented a question of fact which the trial court resolved in defendant\u2019s favor. From our review of the rather sketchy bystander\u2019s report of proceedings made available to us, we cannot say that the trial court\u2019s finding that plaintiff failed to perform its contractual duties is against the manifest weight of the evidence.\nAccordingly, the judgment is affirmed.\nAffirmed.\nDRUCKER and LORENZ, JJ., concur.", "type": "majority", "author": "Mr. JUSTICE SULLIVAN" } ], "attorneys": [ "J. Edward Jones, of Blue Island, for appellant.", "Joseph J. Jares, Jr., of Chicago, for appellee." ], "corrections": "", "head_matter": "George F. Mueller & Sons, Inc., Plaintiff-Appellant, v. Northern Illinois Gas Company, Defendant-Appellee.\n(No. 60322;\nFirst District (5th Division)\nSeptember 12, 1975.\nJ. Edward Jones, of Blue Island, for appellant.\nJoseph J. Jares, Jr., of Chicago, for appellee." }, "file_name": "0249-01", "first_page_order": 275, "last_page_order": 281 }