ROBERT KERN et al., d/b/a Belleville General Contracting, Plaintiff-Appellee, v. JAMES F. RAFFERTY et al., Defendants-Appellants.
Fifth District No. 5-83-0770
Fifth District
March 7, 1985
Rehearing denied April 10, 1985
728
Storment & Read, of Belleville, for appellees.
JUSTICE KASSERMAN delivered the opinion of the court:
Defendants appeal from a judgment entered against them by the circuit court of St. Clair County in the amount of $4,902.72 on plaintiff‘s suit to recover additional compensation for extras on a building and construction contract. Defendants raise two issues on appeal, namely: (1) whether the judgment is against the manifest weight of the evidence; and (2) whether the trial court improperly admitted plaintiffs’ exhibit No. 16 into evidence over defendants’ hearsay objection.
The dispute in this case involves an 8-foot by 47-foot room addition to defendants’ home which was built by the plaintiffs. The plaintiffs filed suit, contending that defendants owe them $8,269.21 for extra work they performed at defendants’ home. Defendants filed a counterclaim in the amount of $5,000, alleging there were numerous defects in the work done by the plaintiffs, such as leaks, bad wiring and poor carpentry.
The contract between the parties was oral, and the parties dispute its terms. Plaintiffs’ exhibit No. 13 and plaintiffs’ exhibit No. 13A represent memoranda of the parties’ differing positions as to the terms of the oral contract. Plaintiffs’ exhibit No. 13, which represents plaintiffs’ version of the contract, is an unsigned written proposal from the plaintiffs to the defendants for an 8-foot by 47-foot room addition to the rear of defendants’ home for the price of $12,500. This proposal specifically excluded interior and exterior painting, floor cov
It is conceded that defendants paid plaintiffs $12,500 on the original contract, plus an additional $3,800 for extra materials and fixtures which were admittedly authorized by the defendants. The dispute centers on plaintiffs’ claim for extra compensation set forth in plaintiffs’ exhibit No. 16, a six-page bill prepared by plaintiffs and sent to defendants, consisting of numerous itemized charges for work totalling $8,269.21 which plaintiffs contend was in addition to the original contract. Defendants admit that all the work set forth on plaintiffs’ exhibit No. 16 was done by the plaintiffs; and, although they dispute the number of hours set forth on that bill, defendants do not dispute the hourly charge ($22.50). It is defendants’ contention that plaintiffs’ extra charges reflected in plaintiffs’ exhibit No. 16 do not represent additional work but rather are a duplication of charges for work which plaintiffs were already obligated to perform under the original contract. Plaintiffs deny this, claiming that plaintiffs’ exhibit No. 16 represents, in the most part, labor charges for the installation of the extra materials and fixtures which were admittedly authorized and for which plaintiff was paid $3,800 by the defendants. Defendants, on the other hand, contend that the $3,800 in extras which they ordered were primarily a substitution of better quality materials for what plaintiffs agreed to build or install under the original contract and that it should not take any longer to install a better quality item than a less expensive one. Defendants urge that, while they agreed to pay for the extra materials, they did not agree to pay for any extra labor. Defendants state further that while certain materials and fixtures were excluded under the contract, nothing was said about excluding labor for installation of these materials and fixtures. With respect to their counterclaim, defendants presented testimony and photographs in support of their contention that plaintiffs’ work was defective; however, they presented no evidence to the trial court establishing the cost of repairing the alleged defective work.
The trial court entered judgment against the defendants in the amount of $4,902.72. No findings of fact or explanations as to how this figure was reached were made by the trial court.
Defendants’ first contention on appeal is that the judgment is
It is the duty of this court to determine on review whether the evidence supports the trial court‘s finding. When a trial court fails to make detailed findings of fact, as in the instant case, this court must presume that the trial court found all issues and controverted facts in favor of the prevailing party. (Skokie Gold Standard Liquors, Inc. v. Joseph E. Seagram & Sons, Inc. (1983), 116 Ill. App. 3d 1043, 452 N.E.2d 804.) The conflicting testimony of plaintiffs and defendants required resolution of a credibility issue and the trial court apparently accepted the plaintiffs’ testimony. The trial judge, as the trier of fact in this case, is in a position superior to a court of review to determine credibility. (Schulenburg v. Signatrol, Inc. (1967), 37 Ill. 2d 352, 226 N.E.2d 624.) We will not overturn that determination barring a record clearly contrary to the trial court‘s finding. Pensgard v. Powers (1972), 8 Ill. App. 3d 646, 290 N.E.2d 642.
Our review of the record in the instant case indicates that, irrespective of which version of the evidence the trial court accepted as the contract (exhibit No. 13 or exhibit No. 13A), there was sufficient evidence to support the trial court‘s ruling, and it cannot be said as a matter of law that the court‘s judgment was against the manifest weight of the evidence. The record reflects that defendants ordered and agreed to pay for numerous extras outside the contract, namely, extra wiring, a sliding pocket door instead of a regular door, a pantry in the kitchen, a skylight in the kitchen, finish work and trim work around windows, the removal of the old bathroom floor, a bathroom door, a new roof on the front of the house, and a special tub. Although both parties agree that the kitchen floor underlayment was specifically excluded under the original contract, defendants contend that the labor charge for its installation was not. Thus, while admit
Turning to defendants’ second assignment of error, defendants contend that the trial court improperly admitted plaintiffs’ exhibit No. 16 into evidence. Plaintiffs’ exhibit No. 16 is the six-page itemized bill in dispute, which the plaintiffs relied upon for the purpose of showing the extra work which they claim to have done for the defendants. The bill was prepared by Mr. Kern, one of the plaintiffs, who testified that the itemized charges on the bill were taken from weekly and daily records that were prepared at the job site. He testified that he prepared the bill about a month after completing the job, although the defendant, James Rafferty, testified he did not receive the bill until six months later. The defendants assert that the bill is hearsay that could only be admissible as a business record pursuant to Supreme Court Rule 236 and that plaintiffs failed to lay a proper foundation for its admissibility.
Supreme Court Rule 236 provides that a writing “shall be admissible as evidence of the act, transaction, occurrence, or event, if made in the regular course of any business, and if it was the regular course of the business to make such a memorandum or record at the time of such an act, transaction, occurrence, or event or within a reasonable time thereafter. ***” (
For the reasons stated above, we affirm the decision of the circuit court of St. Clair County.
Affirmed.
KARNS, J., concurs.
JUSTICE HARRISON, dissenting:
I respectfully dissent, because I agree with defendants’ contention that plaintiffs’ exhibit No. 16 was hearsay and improperly admitted in evidence. Plaintiffs’ exhibit No. 16 was merely a bill prepared by plaintiffs showing charges for extra work. As the majority indicates, this bill was prepared by Mr. Kern, who testified that the charges on the bill were taken from weekly and daily records that were prepared on the job site. He testified that he prepared the bill a month after completing the job. This court has recently ruled in A.J. Davinroy Plumbing & Heating v. Finis P. Ernst, Inc. (1980), 87 Ill. App. 3d 1047, 409 N.E.2d 372, that such a cost summary is not admissible as a business record.
Under
Also, the bill could not properly be admitted as a past recollection recorded. When a witness testifies that he has made a report or memorandum of the occurrence at or near the time of its happening, but upon examination of the writing he has no independent recollection of the matter contained thereon except he knows that it is correct, then such a report is admissible in evidence. (Healy v. City of Chicago (1969), 109 Ill. App. 2d 6, 11, 248 N.E.2d 679.) There was simply no proper foundation for a past recollection recorded made in this case.