Weidner v. Szostek

614 N.E.2d 879, 245 Ill. App. 3d 487, 185 Ill. Dec. 438, 1993 Ill. App. LEXIS 755
CourtAppellate Court of Illinois
DecidedMay 28, 1993
Docket2-92-0982
StatusPublished
Cited by21 cases

This text of 614 N.E.2d 879 (Weidner v. Szostek) 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
Weidner v. Szostek, 614 N.E.2d 879, 245 Ill. App. 3d 487, 185 Ill. Dec. 438, 1993 Ill. App. LEXIS 755 (Ill. Ct. App. 1993).

Opinion

JUSTICE QUETSCH

delivered the opinion of the court:

Plaintiffs, Vernon and Ronald Weidner, as successors in interest to Weidner Concrete Company, formerly doing business as Weidner Construction Company, filed a three-count complaint against defendants, Joseph Szostek et al., to recover damages for breach of contract. Defendants filed a counterclaim to recover damages also resulting from breach of contract. The trial court entered judgment, minus certain setoffs, against defendants in the amount of $25,922, plus costs. That amount was composed of $15,941 in prejudgment interest, $9,542.50 in attorney fees and $439 in costs. Defendants appeal contending the award of prejudgment interest and attorney fees was contrary to the specific terms of the contract. Plaintiffs cross-appeal contending the trial court’s award of attorney fees was inadequate and the setoff of $2,000 on plaintiffs’ claim against defendants on defendants’ counterclaim was improper. We affirm.

Plaintiffs and defendants entered into a contract on October 19, 1988, to construct a commercial building for defendants on defendants’ property in Crystal Lake, Hlinois. The total cost of the contract was $328,745. Progress payments were to be made over the course of construction with the full sum due and payable within 30 days of completion of the work under the contract.

The building permit was issued on November 9, 1988, and construction began on November 14, 1988. The building was substantially completed by April 14, 1989. A certificate of occupancy was issued and defendants took occupancy on that date. After completion of the building, defendants reported a number of problems to plaintiffs. Plaintiffs submitted a final invoice to defendants dated June 16, 1989, requesting final payment in the amount of $55,688.33. According to plaintiffs, certain items remained to be completed under the terms of the contract at that time. Defendants did not pay the final invoice amount.

Plaintiffs filed suit contending defendants breached the construction contract by failing to pay the amount due under the final invoice. Defendants contend the final invoice amount was not paid because of incomplete work, the failure of plaintiffs to use certain light fixtures supplied by defendants, and the “faulty” excavation of defendants’ vacant lot.

Plaintiffs’ construction expert estimated the cost to complete or repair various incomplete or defective items would be approximately $3,000. Defendants’ construction expert estimated the repair or completion cost would be approximately $16,000. Plaintiffs’ expert approximated the cost of reexcavating defendants’ vacant lot at $3,000. Defendants’ expert approximated the cost at $24,450.

The court found defendants were indebted to plaintiffs in the amount of $55,688.33 less credits or setoffs totaling $8,750, for a total amount of $46,938.33 due under the contract, plus costs and attorney fees. Defendants paid plaintiffs $46,938.33 on May 15, 1992, in exchange for a release of the mechanic’s lien in that amount. The court entered judgment against defendants finding defendants owed plaintiffs prejudgment interest in the amount of $15,941, and attorney fees in the amount of $9,542.50, plus costs to date of $439, for a total of $25,922.50, plus costs. Defendants appeal and plaintiffs cross-appeal.

Defendants contend on appeal the trial court erred in awarding attorney fees and prejudgment interest to plaintiffs because to do so was contrary to the specific language of the contract. In particular, defendants argue that because the contract was not fully performed, payment never became due and, thus, attorney fees and prejudgment interest should never have been awarded for the collection of that payment. We disagree.

Article 5 of the contract provides that the owner (defendants) must make final payment 30 days after completion of the work, provided the contract is fully performed subject to the provisions of paragraph 22 of the general conditions. Paragraph 22 of the general conditions provides in pertinent part:

“[Pjayment is due on the date stated on [c]ontractor’s invoice in accordance with this agreement. Any amount not paid on date due will bear interest at the rate of 1 [percent] per month or the highest lawful rate allowed, whichever is lower, until paid, plus all costs of collecting said amount due, including all court costs and [attorney] fees.”

Defendants argue that in order for payment to become due under article 5, the work had to be completed and the contract had to be fully performed. Defendants emphasize the fact that plaintiffs admitted at trial there were certain items which remained to be completed or repaired under the contract. Thus, defendants argue that because work remained to be completed, final payment never became due and, therefore, attorney fees and prejudgment interest should not have been awarded. Plaintiffs argue that the work was completed and the contract was substantially performed, and, therefore, payment was due. The trial court found plaintiffs substantially completed the work under the contract and that defendants were indebted to plaintiffs in the amount of $55,688.33, less credits or setoffs totaling $8,750, for a total amount due under the contract of $46,938.33, plus attorney fees and prejudgment interest.

The meaning of a contract is ordinarily a question of law. (Szczerbaniuk v. Memorial Hospital (1989), 180 Ill. App. 3d 706, 713.) A court must consider a contract in the context of the entire agreement. (Wilson v. Wilson (1991), 217 Ill. App. 3d 844, 850.) The determinative factor is the intention of the parties, which can best be determined by considering the contract as a whole, reviewing each part in light of the others. (Wilson v. Wilson, 217 Ill. App. 3d at 850.) An instrument should be given a fair and reasonable interpretation based on consideration of all its language and provisions. (Shelton v. Andres (1985), 106 Ill. 2d 153, 159.) Moreover, “[i]n attempting to arrive at a fair and reasonable construction, ‘courts are not confined to a strict and literal construction of the language used, when such construction will frustrate the intention of the parties, gathered from a consideration of the whole instrument.’ ” Shelton v. Andres, 106 Ill. 2d at 159, quoting Shadden v. Zimmerlee (1948), 401 Ill. 118,123.

Article 5 provides for payment within 30 days of completion provided the contract is fully performed. It is this language upon which defendants base their argument that there must be full performance before payment is due, not substantial performance. However, we must review this provision in light of the whole contract.

Paragraph 8 of the general conditions governs delivery and completion. It provides in pertinent part:

“[A]s used in this agreement, ‘[Substantial [Cjompletion’ shall mean the date on which the [ojwner begins to occupy the premises or to move his equipment or property onto the premises or the date on which the [Cjontractor notifies the [Ojwner in writing of completion of the building, whichever occurs first.”
Paragraph 15 governs occupancy under the contract. It provides:

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Cite This Page — Counsel Stack

Bluebook (online)
614 N.E.2d 879, 245 Ill. App. 3d 487, 185 Ill. Dec. 438, 1993 Ill. App. LEXIS 755, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weidner-v-szostek-illappct-1993.