Kars v. Knauf

Citations: 141 N.E.2d 410; 13 Ill. App. 2d 219Docket: Gen. 47,052

Court: Appellate Court of Illinois; April 24, 1957; Illinois; State Appellate Court

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Sam and Eva Kars, the appellants, filed an amended complaint against John S. Knauf (operating as Knauf and Weber Roofing Company), Raymond L. Lutgert Construction Company, Inc., and Sidney H. Morris and Associates, Inc., seeking damages for faulty construction of a building located at 4345-49 North Central Avenue, Chicago. The defendants responded, with Morris additionally filing a counterclaim for $1,000 for unpaid architectural services. Under a written agreement, Morris was responsible for creating architectural plans and supervising the construction of a retail store and family dwelling. Lutgert was the general contractor, while Knauf had a subcontract to build the roof according to Morris's designs. Construction began in March 1949 and was completed by August of the same year. 

After moving in, the Kars experienced significant roof leaks starting in July 1949, worsening during December 1949 and February 1950. They notified Morris, who escalated the issue to Lutgert and Knauf, but the defects were not addressed. Consequently, the Kars hired independent contractors for repairs and subsequently initiated this lawsuit to recover those costs. The case was tried without a jury, resulting in a directed finding in favor of Knauf, while the motions for a directed finding by Morris and Lutgert were denied initially. However, both renewed their motions later, which were granted, leading to a judgment in their favor. Morris was allowed to amend his counterclaim to seek a total of $1,312.50 for the alleged architectural fees.

In this state, defendants waive their motions for a directed verdict if they introduce evidence after their motion is denied at the close of the plaintiff's case. In Goldberg v. Capitol Freight Lines, Ltd., the defendant bus company sought a directed verdict after the plaintiff's presentation, but upon being denied, it introduced evidence and later attempted to renew its motion. The Appellate Court ruled that once the bus company presented evidence, its initial motion was permanently out of the case and could not be renewed or reserved. Defendants wishing to challenge the sufficiency of the plaintiff's case must make a new motion for a directed verdict at the close of all evidence. The court emphasized that the procedure followed by the defendants was improper, as they needed to present a second motion based on all evidence for judicial review. The trial judge had denied motions from two defendants, indicating he believed the plaintiff had established a prima facie case. Additionally, defendant Morris amended his counterclaim from a claim for $1,000 in architectural services to an account stated, thus taking on the burden of proof for that claim.

Morris instructed the firm's chief bookkeeper to bill the Karses $1,000, but the original billing statement was not presented at trial, nor was a notice to produce it served to the plaintiffs. The plaintiffs were not called to testify under section 60 of the Civil Practice Act, and no explanation was provided for the absence of the firm’s mailing representative. The mere act of dictating a letter is insufficient to demonstrate that the letter was received. Morris claimed Mr. Kars was satisfied with the work, although Kars had testified in his main lawsuit about being financially obligated to several firms due to defective roofing work, which also damaged his merchandise. Kars’s decision to sue for damages indicates his dissatisfaction with the construction quality. 

Defendant's counsel argued that the plaintiffs' payment of a judgment against them on a counterclaim rendered the case moot regarding Morris. However, the law treats a counterclaim as a distinct cause of action, meaning the payment of this judgment does not impact the main case. The counterclaim pertained to an account stated for the architect's fees, which had separate pleadings and judgments. The payment of this judgment is treated as if it occurred before the main lawsuit, thus maintaining the relevance of the issues in the main case. 

The defendants suggested the payment was ‘voluntary,’ but plaintiffs’ counsel argued they faced a choice between appealing the judgment or attempting to vacate it, with the latter option presenting the risk of an execution on the judgment. The plaintiffs opted to pay the judgment due to the pressure of potentially facing a levy on their business assets, indicating that their payment was made under compulsion rather than acquiescence to the court's decision.

In Richeson v. Ryan, 14 Ill. 74, the court ruled that satisfaction of a money judgment prior to the issuance of an execution does not prevent a party from pursuing a writ of error or appeal. This principle has been consistently upheld in subsequent cases, including Lott v. Davis, Jacksonville Hotel Building Corp. v. Dunlap Hotel Co., and First National Bank of Jonesboro v. Road District No. 8. The Richeson decision emphasized that if the judgment had been enforced through execution, the party would retain the right to challenge the judgment and seek a refund if it was found erroneous. The court asserted that any payment made was effectively under legal compulsion, as Richeson could only avoid payment by successfully reversing the judgment. He was entitled to pay the judgment immediately to avoid interest and costs without forfeiting his right to appeal. Consequently, the judgments were reversed and the case was remanded for a new trial, with concurrence from judges Niemeyer and Burke.