Folk v. Central National Bank & Trust Co.

567 N.E.2d 1, 210 Ill. App. 3d 43, 153 Ill. Dec. 286, 1991 Ill. App. LEXIS 308
CourtAppellate Court of Illinois
DecidedMarch 7, 1991
Docket2-90-0025
StatusPublished
Cited by11 cases

This text of 567 N.E.2d 1 (Folk v. Central National Bank & Trust Co.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Folk v. Central National Bank & Trust Co., 567 N.E.2d 1, 210 Ill. App. 3d 43, 153 Ill. Dec. 286, 1991 Ill. App. LEXIS 308 (Ill. Ct. App. 1991).

Opinion

JUSTICE WOODWARD

delivered the opinion of the court:

Defendant, Byron Dragway, Inc., appeals from a judgment of the circuit court of Ogle County, wherein it found that plaintiff, Randy Folk, d/b/a Folk Blacktop Concrete Construction, had substantially performed its contract with defendant and, thus, ordered the enforcement of plaintiffs mechanic’s lien. On appeal, defendant, Byron Drag-way, raises two issues, namely, whether plaintiff substantially performed said contract and whether the trial court erred in considering its personal inspection of the subject dragway as part of the evidence.

Defendant is a corporation engaged in the auto dragway business in Byron, Illinois. Byron Dragway is the sole owner of the beneficial interest in the land trust holding title to the real estate upon which the subject dragway is located.

In 1986, defendant’s insurance carrier informed defendant’s president, Ronald L. Leek, that concrete retaining walls would be required at the dragway for insurance purposes. Because the surface of the dragway was 25 years old, defendant decided to resurface it and install electronic timing equipment, prior to the installation of the required concrete walls. Early in 1987, defendant secured financing for the improvements from United Bank of Southgate (Bank) and began soliciting bids for the proposed improvements at the dragway.

On or about July 10, 1987, plaintiff submitted to Mr. Leek a written proposal, which described the contemplated improvements to make certain improvements to the dragway described as follows:

“A. Saw cut out a 400’ X 20’ area in each lane, rip out and haul to South end of track.

B. Grade area’s [sic] for 6” of concrete.

C. Install steel rebar the same as it was when we tore it out.

D. Pour six inches of concrete in each lane and finish.

PRICE: $24,250

Concrete Walls

A. Pour concrete walls as we discussed them for eleven dollars a foot. Anchoring them to old blacktop is open until I know for sure how you want it.

Blacktop Work

A. Fill all cracks and low spots so it is level.

B. Pave a IV2 hot mix matt in the area South of the stag-

. ing lanes and 84’ wide all the way down the track.

PRICE: $86,400

WE [sic] will fix bad spots while we are there with any leftover hot mix.”

Thereafter, Leek orally accepted said proposal submitted to him by plaintiff. Plaintiff was to be paid upon completion of the construction.

Plaintiff then contracted with Oregon Stone, Inc. (asphalt), Beeline Ready-Mix (concrete), and Tom O’Day (concrete walls), each of whom supplied plaintiff with material services for use in the drag-way’s improvements.

Near completion of the construction, plaintiff submitted a modified proposal to Byron Dragway reflecting a discount for not applying primer to the old surface prior to the laying of the new surface and for paving less area than the contract required. Plaintiff also submitted an invoice for extra work and requested payment of said sums.

Thereupon, Leek spoke to the Bank concerning payment to plaintiff. The Bank refused to release funds to pay plaintiff due to the apparent defects in the asphalt and concrete surfaces. After several meetings and upon presentation of a letter from plaintiff stating that he would replace the concrete pad subsequent to the racing season, the Bank stated that it would release funds only if plaintiff would secure bonding and insurance. Plaintiff refused to provide evidence of bonding and insurance, and as a result, the Bank refused to release funds to pay for the new construction due to the dragway’s defective condition.

On October 8, 1987, plaintiff filed a complaint for foreclosure of mechanic’s lien against the dragway, subcontractors Oregon Stone, Inc., Beeline Ready-Mix, Tom O’Day, and the Bank. In response thereto, on April 25, 1988, defendant filed its answer and counterclaim against plaintiff for breach of contract as a result of plaintiff’s failure to perform the terms of the contract in a workmanlike manner. The subcontractors, Oregon Stone, Inc., Beeline Ready-Mix, and Tom O’Day, filed answers and cross-complaints for foreclosure of mechanic’s lien for materials and services provided in the new construction. The Bank also filed an answer and cross-claim for foreclosure.

A bench trial was held April 11, 1989, through April 14, 1989. At the conclusion of the parties’ cases in chief, the trial judge personally inspected the disputed improvements at the dragway. On June 2, 1989, the trial court issued a memorandum decision stating that plaintiff had substantially performed the terms of its contract with defendant. On August 18, 1989, the trial court entered a judgment of foreclosure and sale in favor of plaintiff and the subcontractors and against defendant in the amount of $140,272.48 plus interest. The judgment amount included a credit of $25,120 for plaintiff’s failure to apply primer and to pave properly certain areas as specified by the contract.

On September 13, 1989, defendant filed its motion after judgment which was denied by the trial court on December 13, 1989. This appeal followed.

We initially address the issue of whether the court below erred in finding that plaintiff substantially complied with the contract and, therefore, found that its mechanic’s lien should be enforced.

As a general rule, although a mechanic’s 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. (Ruddy v. McDonald (1910), 244 Ill. 494, 499.) 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. (Delta Construction, Inc. v. Dressler (1978), 64 Ill. App. 3d 867.) A contractor is not required to perform perfectly, but rather is held only to the duty of substantial performance in a workmanlike manner. (Watson Lumber Co. v. Guennewig (1967), 79 Ill. App. 2d 377, 397.) What constitutes substantial performance is difficult to define, and whether substantial performance has been given will depend upon the relevant facts of each case. (Brewer v. Custom Builders Corp. (1976), 42 Ill. App. 3d 668.) However, the burden is on the contractor to prove the elements of substantial performance in order to enforce his lien. (Watson Lumber Co., 79 Ill. App. 2d at 397.) A contractor whose performance amounts to less than substantial performance is not entitled to the contract price. If there is not substantial performance, then the contractor can recover, under a theory of quantum meruit, only the reasonable value received by the purchaser and above the injury suffered by the builder’s breach. (George Butkovich & Sons, Inc. v. State Bank (1978), 62 Ill. App.

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Bluebook (online)
567 N.E.2d 1, 210 Ill. App. 3d 43, 153 Ill. Dec. 286, 1991 Ill. App. LEXIS 308, Counsel Stack Legal Research, https://law.counselstack.com/opinion/folk-v-central-national-bank-trust-co-illappct-1991.