Inryco, Inc. v. Multuloc Corp.

559 N.E.2d 1000, 202 Ill. App. 3d 367, 147 Ill. Dec. 660, 1990 Ill. App. LEXIS 1263
CourtAppellate Court of Illinois
DecidedAugust 22, 1990
DocketNo. 1-88-2780
StatusPublished
Cited by2 cases

This text of 559 N.E.2d 1000 (Inryco, Inc. v. Multuloc Corp.) 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
Inryco, Inc. v. Multuloc Corp., 559 N.E.2d 1000, 202 Ill. App. 3d 367, 147 Ill. Dec. 660, 1990 Ill. App. LEXIS 1263 (Ill. Ct. App. 1990).

Opinion

JUSTICE RIZZI

delivered the opinion of the court:

Defendant Multuloc Corporation (Multuloc) appeals from an order of the circuit court of Cook County which denied its motion for summary judgment and granted plaintiff Inryco, Inc.’s (Inryco’s) motion for summary judgment. We reverse and remand for trial.

Inryco, a manufacturer and supplier of flooring and roofing products, brought suit against Multuloc, a floor and roof deck subcontractor, to recover damages for the balance of the contract price for roof decking materials it provided to Multuloc for its use during the 1981 construction of the Continental Baking Company bakery (Continental) in Hodgkins, Illinois. The balance allegedly owed by Multuloc was withheld after Continental refused to pay Multuloc the same amount when it discovered that the interior roof of the building did not comply with its specifications. As a result, Continental had to pay for corrective painting of the interior roof. The cost of the painting was the payment amount which Continental withheld from Multuloc and the amount of Multuloc’s setoff against Inryco.

The negotiations on the project began when Multuloc submitted a written proposal to Continental on April 22, 1981. The proposal called for Multuloc to construct a two-part cellular roof deck having a G-60 galvanized coating. The G-60 description is an ASTM industry standard specification for a galvanized coating having sixty one-hundredths of an inch of galvanizing material per square foot of surface area. Continental accepted the proposal and authorized Multuloc to construct the building. On May 8, 1981, Multuloc sent a material purchase order to Inryco. The purchase order contained, inter alia, the following requests, “approx. 1356 sqs. of Inryco l-5/s NF 20/20 Galv. (G60) Roof Deck.” In his affidavit, Kenneth R. Grearson (Grearson), president of Multuloc, stated that he received a written acknowledgement of his order on May 14, 1981. The acknowledgement letter informed Grearson that a complete and final bill of material should be sent to Inryco on or before July 13, 1981, in order to maintain the desired production schedule.

On July 10, 1981, Grearson telephoned Inryco to provide the necessary information to complete the bill of material. The information was taken via telephone by Inryco’s customer service representative. The customer service representative transcribed the order specifications onto a bill of material form. On or about July 15, 1981, Inryco sent Multuloc a copy of the final and complete bill of material. That bill of material contained a product description which called for roof deck material with a G-60 coating on the top and an A-40 coating on the bottom. The coating specifications were written in the language of Inryco’s internal code classifications and not in ASTM standard language. In his affidavit, Grearson indicated that he did not alter his original G-60 coating specification when he provided the information for the bill of material by telephone. Grearson further indicated that when he received a copy of the bill of material, he did not review the product coating specifications because he was unfamiliar with Inryco’s internal code classifications. Grearson stated that he focused his attention on the “cutting list,” which detailed the lengths and numbers of pieces to be cut by the mill for shipment to the job-site.

Inryco fabricated the ordered material in accordance with the bill of material. From August 8, 1981, to August 22, 1981, Inryco shipped the materials to Multuloc’s work site. Inryco also sent 15 individual notices of shipment to Multuloc. The notices contained Inryco internal code classifications for a deck product with a G-60 coating on the top and an A-40 coating on the bottom. Grearson acknowledged receipt of the notices, but stated that he never reviewed the product specifications for accuracy. The roof deck product was stored at the jobsite on pallets in the bundles shipped from the Inryco factory. Because the product was stored with the underside down, no one at Multuloc examined the underside of the product.

The roof deck product remained bundled until erection of the structure began on September 19, 1981. According to Multuloc, it was its practice and the practice of other roof deck subcontractors operating in the Chicago market at the time of the performance of this subcontract not to make detailed inspections either of the numbers and lengths of pieces or of the conformity of the various galvanized coatings to contract specifications at the time of delivery but, rather, to wait until the materials were lifted by crane to the location where they were to be used. On or about September 23, 1981, Grearson was informed by Continental that the underside of the partially constructed roof was badly streaked. Continental informed Grearson that it would not accept the installed galvanized deck product in that condition because it was not the product specified in their contract.

In response to Continental’s complaint, Grearson obtained a sample of the product and took it to Inryco’s Melrose Park office on September 23, 1981, to inquire if the underside of the product had a G-60 surface. Inryco tested the product and on October 7, 1981, informed Multuloc that the underside of the product had an A-40 surface. When Continental was informed that the underside of the deck product surface was A-40 instead of G-60, it informed Multuloc that the A-40 finish was unacceptable and that field painting would be performed at Multuloc’s expense. Continental refused to consent to removal of the objectionable product or wait for delivery of a new order. Bids were solicited for the roof painting, and the low bid price was $27,667. Continental deducted the price of the paint job from its payment to Multuloc. Thereafter, Multuloc requested, but was refused reimbursement from Inryco for the cost of the painting. As a result, Multuloc deducted the cost of painting from the payment due Inryco for the deck materials. This lawsuit followed.

On appeal, Multuloc contends that the trial court erred in granting Inryco’s motion for summary judgment and in denying its motion for summary judgment. Alternatively, Multuloc contends that because material issues of fact exist, summary judgment for either party was inappropriate. We agree with Multuloc’s latter contention.

Summary judgment is appropriate if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Lane v. City of Harvey (1988), 178 Ill. App. 3d 270, 273, 533 N.E.2d 75, 78; Ill. Rev. Stat. 1987, ch. 110, par. 2—1005(c).) The aim of summary judgment is not to try issues but to determine whether any triable issues exist. (Staton v. Amax Coal Co. (1984), 122 Ill. App. 3d 631, 633, 461 N.E.2d 612, 614.) Evidence in support of the motion must be strictly construed against the moving party, and summary judgment should be denied where reasonable persons could arrive at different conclusions. (Petkus v. Girzadas (1988), 177 Ill. App. 3d 323, 327, 532 N.E.2d 333, 336.) An order granting summary judgment must be reversed if a reviewing court determines that an issue of material fact exists. Arnold v.

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Bluebook (online)
559 N.E.2d 1000, 202 Ill. App. 3d 367, 147 Ill. Dec. 660, 1990 Ill. App. LEXIS 1263, Counsel Stack Legal Research, https://law.counselstack.com/opinion/inryco-inc-v-multuloc-corp-illappct-1990.