Landmark Structures, Inc. v. F.E. Holmes & Sons Construction Co.

552 N.E.2d 1336, 195 Ill. App. 3d 1036, 142 Ill. Dec. 595, 1990 Ill. App. LEXIS 512
CourtAppellate Court of Illinois
DecidedApril 6, 1990
Docket5-88-0787
StatusPublished
Cited by13 cases

This text of 552 N.E.2d 1336 (Landmark Structures, Inc. v. F.E. Holmes & Sons Construction 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
Landmark Structures, Inc. v. F.E. Holmes & Sons Construction Co., 552 N.E.2d 1336, 195 Ill. App. 3d 1036, 142 Ill. Dec. 595, 1990 Ill. App. LEXIS 512 (Ill. Ct. App. 1990).

Opinion

PRESIDING JUSTICE LEWIS

delivered the opinion of the court:

The plaintiff, Landmark Structures, Inc. (hereafter referred to as Landmark), brought an action to recover an alleged balance of $154,072.35 due on a contract between it and the defendant, EE. Holmes and Son Construction Company, Inc. (hereafter referred to as Holmes). Under the contract, entered into on October 12, 1982, the plaintiff was to provide prefabricated wall panels or units to the defendant for use in the construction of three multifamily apartment complexes located in Anna, Vienna, and Metropolis, Illinois. Plaintiff sued the defendant American Insurance Company as surety. As one of its affirmative defenses, Holmes alleged that certain of the panels were not merchantable, in violation of section 2—314 of the Uniform Commercial Code (Ill. Rev. Stat. 1981, ch. 26, par. 2—314), and that Holmes’ damages incurred on account of Landmark’s breach exceeded the amount of Landmark’s claim. The defendant Holmes counterclaimed against Landmark, alleging that on June 28, 1982, Holmes had entered into a contract with the Illinois Housing Development Authority for the construction of what is known as Country Village I in Anna, Country Village II in Vienna, and Country Village III in Metropolis. Holmes alleged in the counterclaim inter alia that the goods specified in the agreement between it and Landmark had been nonconforming “in that the siding was not affixed to the wallboard in accordance with specifications and the vapor barrier was not properly affixed in accordance with specifications.” Holmes alleged further that the goods specified in the agreement between it and Landmark were not of even kind and quality and were not fit for the ordinary purposes for which goods are sold in that the siding buckled from the wallboard from which it was attached in violation of section 2 — 314 of the Uniform Commercial Code. Holmes had, it alleged, substituted goods for the nonconforming ones provided by Landmark at an expense to Holmes of $143,211.63.

Following a bench trial, conducted on October 24 and 25, 1988, the trial court entered judgment in favor of Holmes and against Landmark on Landmark’s complaint and on Holmes’ counterclaim. The amount of the judgment on the counterclaim was $53,421.81. Upon the trial court’s denial of Landmark’s post-trial motion, this appeal followed in which six issues are presented for our review: (1) whether the contract between Landmark and Holmes contained a valid disclaimer of warranties pursuant to section 2—316 of the Uniform Commercial Code (Ill. Rev. Stat. 1981, ch. 26, par. 2—316); (2) whether the contract between Landmark and Holmes contained a valid limitation of remedies pursuant to section 2—719 of the Uniform Commercial Code (Ill. Rev. Stat. 1981, ch. 26, par. 2—719); (3) whether the damages awarded to Holmes on its counterclaim were supported by the evidence; (4) whether Holmes’ exhibits Nos. 11, 12, 13 and 14, consisting of summaries of back charges, should have been admitted into evidence; (5) whether Holmes met “its burden of proof to show the absence of an intervening cause of the buckling of the siding”; and (6) whether one who provides materials specifically designated in a construction contract is liable if those materials are defective or are later shown to be unsuitable.

Lewis Martin, who in October of 1982 had been Landmark’s president, testified on behalf of Landmark concerning Landmark’s exhibit No. 1, which the witness described as an “order form” whose purpose was “to tell us what to build and what options to supply.” This exhibit consists of several pages, the first several of which are on buff-colored paper. The first page of this exhibit, unlike the remaining pages, is printed on both sides. The front of the first page bears Landmark’s logo and the heading “ORDER FORM MULTI-FAMILY SPECIAL BUILDINGS.” The total amount of the contract, set forth on the front of this page, is $786,262.60. The signature “R.L. Holmes” appears at the bottom of the front of this page on the line above the words, in bold print in black ink, “SIGNATURE OF AUTHORIZED PERSON,” which is immediately above the words in bold print in brown ink, “PER ‘CONDITION OF SALE’ REVERSE SIDE.” On the reverse side are 11 paragraphs, number 10 of which is designated “Warranty and Disclaimer.” In subparagraph (b) of this paragraph, the following appears in capital letters:

“MANUFACTURER ASSUMES NO OBLIGATION BEYOND THAT SET FORTH IN THIS AGREEMENT, AND CONTRACTOR ACCEPTS THE FOREGOING IN PLACE OF INCIDENTAL OR CONSEQUENTIAL DAMAGES THAT MAY BE INCURRED BY THE CONTRACTOR. THE FOREGOING SHALL BE CONTRACTOR’S SOLE REMEDY AND SHALL BE IN LIEU OF ALL WARRANTIES, WHETHER EXPRESSED OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A SPECIFIC PURPOSE OR LOCATION.”

As a result of the agreement, the witness stated, Landmark delivered panels and materials to Holmes. On cross-examination the witness stated that Jimmy Maxwell was the salesperson who had taken this exhibit to be executed by Holmes. The witness was not present when the exhibit was signed. Jimmy Maxwell did not testify.

Landmark called as an adverse witness Richard Lynn Holmes, who is the defendant’s president. He testified that the signature on Landmark’s exhibit No. 1 was his. On cross-examination he testified that at the same time he signed Landmark’s exhibit No. 1 in his office he also signed Holmes’ exhibit No. 2 in the presence of the salesperson Jimmy Maxwell. No one else from Landmark was present at the time. He described the front of the first page of Landmark's exhibit No. 1 and the front of the first page of Holmes’ exhibit No. 2 as “identical except for color.” Appearing on Holmes’ exhibit No. 2, which is white, is the witness’ original signature, “R.L. Holmes,” in ink that has been smudged since the time of signing. Unlike the back of Landmark’s exhibit No. 1, the back of Holmes’ exhibit No. 2 is blank; nor do the contents of the back of Landmark’s exhibit No. 1 appear anywhere else in Holmes’ exhibit No. 2 as, for example, on a separate page. The other pages of these two exhibits are identical; Holmes’ exhibit appears to be a photocopy of Landmark’s exhibit that was made prior to Holmes’ signing of both documents. The witness testified that before he signed these two documents he had not, to his knowledge, discussed or negotiated the conditions of sale appearing in Landmark's exhibit No. 1 with Jimmy Maxwell or anyone else from Landmark. After Richard Holmes signed the two documents, Jimmy Maxwell took with him Landmark’s exhibit No. 1 and left with the witness Holmes’ exhibit No. 2. The witness, who has a degree in engineering from the University of Illinois and has been in the construction business most of his life, testified that he made no inquiry that he knew of concerning the condition of sale referred to on Holmes’ exhibit No. 2, saying, “Well, I would have, yes, when I saw a note like this, I would have looked at the back side. If there were none, then being an engineer, it says what it says, it is what it is.”

Landmark called as a witness Joe DeAngelo, who had been Holmes’ superintendent, or project supervisor, while the Country Village apartment project was going on. He described Lynn Holmes as having been above him in the chain of command and himself as the person responsible for the day-to-day building activity at all three sites. At the time of trial the witness was no longer in Holmes’ employ.

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Bluebook (online)
552 N.E.2d 1336, 195 Ill. App. 3d 1036, 142 Ill. Dec. 595, 1990 Ill. App. LEXIS 512, Counsel Stack Legal Research, https://law.counselstack.com/opinion/landmark-structures-inc-v-fe-holmes-sons-construction-co-illappct-1990.