{
  "id": 5639001,
  "name": "WALLACE CARLSON, d/b/a Carlson Construction Company, Plaintiff-Appellee, v. ARCHIE D. CREMEENS et al., Defendants-Appellants",
  "name_abbreviation": "Carlson v. Cremeens",
  "decision_date": "1977-06-13",
  "docket_number": "No. 13159",
  "first_page": "742",
  "last_page": "746",
  "citations": [
    {
      "type": "official",
      "cite": "49 Ill. App. 3d 742"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [
    {
      "cite": "332 N.E.2d 197",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "opinion_index": 0
    },
    {
      "cite": "30 Ill. App. 3d 196",
      "category": "reporters:state",
      "reporter": "Ill. App. 3d",
      "case_ids": [
        2624936
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ill-app-3d/30/0196-01"
      ]
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    {
      "cite": "300 N.E.2d 627",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "year": 1975,
      "opinion_index": 0
    },
    {
      "cite": "13 Ill. App. 3d 768",
      "category": "reporters:state",
      "reporter": "Ill. App. 3d",
      "case_ids": [
        5346985
      ],
      "year": 1975,
      "opinion_index": 0,
      "case_paths": [
        "/ill-app-3d/13/0768-01"
      ]
    }
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  "analysis": {
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    "char_count": 11375,
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  "last_updated": "2023-07-14T15:10:40.599780+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "WALLACE CARLSON, d/b/a Carlson Construction Company, Plaintiff-Appellee, v. ARCHIE D. CREMEENS et al., Defendants-Appellants."
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE TRAPP\ndelivered the opinion of the court:\nDefendants appeal a judgment in the sum of *8500 entered upon a jury verdict in plaintiff\u2019s action for damages alleged to have been incurred by reason of a breach of contract.\nIn June 1971 the parties entered into an option contract whereby plaintiff was to purchase a parcel of real estate. The face of the contract shows that it was drafted by plaintiffs out of state counsel. The cause of action arises in the following provision of the contract:\n\u201c9. WATER AND SEWER. First Parties [defendants] shall, at their own cost and expense furnish an eight inch water line and an eight inch sewer line to the west property line of the land and premises here described as said west premises abut upon North Monroe Street. Such water and sewer line shall be installed and completed by the time of closing and each such line shall be approved by any and all governmental authorities having jurisdiction thereof.\u201d\nThe real estate concerned is generally shaped as a reversed \u201cL\u201d with a short dimension fronting on Monroe Street. Defendants had previously constructed an eight-inch water line across Monroe Street at a point approximately 150. feet north of the north boundary of plaintiff\u2019s land fronting on Monroe Street. In performing the contract, defendants extended the proposed eight-inch water main as a six-inch water line southward along the east line of Monroe Street to a point where such extended water line entered plaintiff\u2019s property on its north line as such north line of the frontage intercepted the east side of Monroe Street. The evidence is that the construction of the extended water line as a six-inch main in lieu of the eight-inch main was suggested and approved by the municipal authorities as to size and manner of installation.\nDefendants\u2019 construction of the six-inch line was recorded upon a plat \u201cas built\u201d and filed with the city before September 9, 1971. Plaintiffs \u201csite plan\u201d showing the six-inch main as constructed was approved by the city in October 1971. The closing of the sale of the real estate between the parties was completed on or before November 10.\nOn March 21, 1972, plaintiff demanded that defendants construct an eight-inch water main \u201cas shown on the attached sketch.\u201d Such sketch is not attached to the letter exhibit, but examination of the full record discloses that plaintiff demanded that defendants construct an eight-inch main from a principal city water main across Monroe Street to the westerly boundary of the parcel. The record shows that defendants offered to replace the six-inch water main with an eight-inch line, but that such offer was refused.\nIn brief, the record discloses that the eight-inch line referred to was a second, or additional line, to complete what was described as a \u201cloop,\u201d which supplied water to the premises from two sources, albeit, using the same principal main. The \u201cloop\u201d is formed by the interconnection of the six-inch water line installed by defendants and the eight-inch line at issue. This requirement is officially documented in a letter dated September 18, 1972, from the Director of Public Works to plaintiff stating: \u201cYou are hereby advised that upon the construction of an eight inch water main across Monroe Street to serve Mini House and the looping of said eight inch main to the north to connect to the existing six inch main \u201d \u201d *\u201d the system would be approved. The record is not clear as to when this requirement was established.\nPlaintiff\u2019s theory is that defendants failed to provide the eight-inch main required by contract by the time of the closing of the sale and that plaintiff could not complete his construction until an eight-inch main was brought across Monroe Street to effect the completion of a loop.\u201d Plaintiff alleges that he made demand for the construction of such eight-inch line and that defendants refused to provide it.\nPlaintiff\u2019s theory is that he is entitled to damages for the cost of construction of the eight-inch main which he undertook to construct in the fall of 1972 at some time following the receipt of the letter from the Director of Public Works. Plaintiff also claims damages in the difference in cost between an asphalt drive originally planned and a concrete drive alleged to have been built in lieu of asphalt because of weather conditions in the fall or winter of 1972.\nDefendants admit that a six-inch main was laid to plaintiff\u2019s property line and allege that the same was and is. being used as a part of the water system in plaintiff\u2019s development. There is evidence that the defendants installed the six-inch main upon the suggestion of the City Engineer Department in lieu of the eight-inch main, and that the plat of such six-inch main as constructed was approved in September 1971. From the record it appears that there is no official objection to, or rejection of, the use of the six-inch main for the purpose for which installed.\nIt is defendants\u2019 theory that the construction of the six-inch line, in lieu of the eight-inch main, was substantially in compliance as a matter of law with the contract duty of defendants to construct an \u201ceight inch water main,\u201d that the evidence showed that the line was installed, was accepted and used by plaintiff, and that plaintiff waived the defective performance by refusal to accept defendants\u2019 offer to substitute an eight-inch line for the six-inch line installed.\nIn their motion for a new trial defendants urged that the trial court erred in denying defendants\u2019 motions for directed verdicts and in denying their motions for judgment n.o.v., and in admitting plaintiff\u2019s evidence of expenses incurred in the construction of an eight-inch water line to complete the \u201cloop,\u201d and building of the concrete driveway.\nThe parties agree that the construction of the terms of a contract is an issue of law to be decided by the court. It appears that where extrinsic facts are not in dispute construction of the contract is a question of law to be decided by the court, rather than one of fact to be determined by a jury. (Blackard Construction Co. v. Berry (1973), 13 Ill. App. 3d 768, 300 N.E.2d 627; Kern Hotel & Tavern, Inc. v. Home Insurance Co. (1975), 30 Ill. App. 3d 196, 332 N.E.2d 197.) Here, the question of what was constructed and when and where are not in dispute.\nThe essential issue presented is whether the contract required that defendants construct the eight-inch line to complete the \u201cloop\u201d which the city required to be constructed in addition to \u201can eight inch water line.\u201d This is an issue for judicial construction and the trial court erred in submitting such issue to the jury. The plain language of the contract requiring \u201can eight inch water line\u201d contains nothing regarding the making of a \u201cloop.\u201d The body of the contract contains no reference to the construction of a nursing home or of a water system satisfactory to its completion. This record shows that the plat of the six-inch line \u201cas built\u201d was on file with the city department in September, prior to the closing in November, and it appears that plaintiff\u2019s site plan incorporated such six-inch line \u201cas built\u201d prior to the time of the closing.\nIn the context of the contract provision for \u201can eight inch water line,\u201d Carroll, an engineer for the city associated with the approval of the plan, testified that if the six-inch line actually installed had been an eight-inch line, such would not have been approved by the city for a nursing home because authorities had concluded that two sources of supply were desirable. It thus appears that if defendants had constructed an eight-inch main in precisely the same fashion, the city requirements would not have been met. It also appears that if defendants had constructed an eight-inch main directly east across Monroe Street to the western edge of plaintiff s parcel just as plaintiff constructed it, such would not have satisfied the city requirements of a \u201cloop.\u201d The same witness testified on cross-examination that the city had approved the six-inch line and that such was being used as a part of the \u201cloop\u201d system.\nHere plaintiff argues:\n\u201cHad Defendants installed the eight inch line prior to closing as the contract required and had the City approved it, then a request by Plaintiff for a second eight inch line to meet other City requirements imposed afterward might have some merit. But Defendants did not furnish the eight inch line in the first instance, and at the time performance was tendered by replacing the six inch line to the north of the premises on March, 1972, four months after the closing the tendered performance was insufficient to fulfill the contract requirements because it would not then meet the City requirements.\u201d\nContrary to defendants\u2019 contentions, at no time were they asked to furnish more than one eight-inch line, and at no time did they do so.\nThis argument disregards the fact that the contract requirements are determined as of the time that the contract is executed, rather than at a subsequent time after conditions not originally stated have intervened. This is exemplified upon plaintiff\u2019s cross-examination where he stated that he would not accept defendants\u2019 offer to replace the six-inch line installed with an eight-inch line unless the city waived the requirement of a \u201cloop.\u201d\nThe contract was executed in June 1971. The plaintiff testified on cross-examination that he did not know as early as August 1971 that the city would \u201crequire m\u00e9 to loop the west main for a nursing home.\u201d The testimony of the municipal engineer, Carroll, is that plaintiff was not told of the necessity of providing a \u201cloop\u201d until after his site plan was submitted and a short time before its approval. Such event was some months after the execution of the contract. This testimony seems to contradict plaintiff*s present contentions concerning the meaning of the contract language.\nA majority of the court conclude that as a matter of law the construction of the six-inch line by defendants followed by plaintiff\u2019s use of such line constituted a substantial performance of the contract provision, and that the trial court erred in submitting into evidence testimony of costs incurred incident to the completion of the \u201cloop\u201d by constructing an eight-inch water main and in admitting into evidence testimony as to the expense of constructing plaintiff\u2019s drive and further conclude that the issue of waiver of further performance by defendants remains as an issue under properly admitted evidence.\nThe writer concludes that since plaintiff neither pleaded nor introduced evidence upon damages other than in the issues discussed, the trial court erred in failing to direct a verdict for defendants and in failing to enter judgments n.o.v., and that the judgment entered should be reversed.\nThe judgment below is reversed and the cause remanded for further proceedings not inconsistent with the views expressed.\nReversed and remanded.\nCRAVEN, P. J., and GREEN, J., concur.",
        "type": "majority",
        "author": "Mr. JUSTICE TRAPP"
      }
    ],
    "attorneys": [
      "Rosenberg, Rosenberg, Bickes & Johnson, Chartered, of Decatur (Wayne L. Bickes, of counsel), for appellants.",
      "Marshall A. Susler, of Owen, Roberts, Susler & Taylor, of Decatur, for appellee."
    ],
    "corrections": "",
    "head_matter": "WALLACE CARLSON, d/b/a Carlson Construction Company, Plaintiff-Appellee, v. ARCHIE D. CREMEENS et al., Defendants-Appellants.\nFourth District\nNo. 13159\nOpinion filed June 13, 1977.\n\u2014 Rehearing denied July 14, 1977.\nRosenberg, Rosenberg, Bickes & Johnson, Chartered, of Decatur (Wayne L. Bickes, of counsel), for appellants.\nMarshall A. Susler, of Owen, Roberts, Susler & Taylor, of Decatur, for appellee."
  },
  "file_name": "0742-01",
  "first_page_order": 764,
  "last_page_order": 768
}