*1 Cоrporation, Corporation, a Olin Mathieson Chemical Sons, Inc., Plaintiff-Appellee, & a J. J. Wuellner v. Supply Corporation, Company, Federal Steel & Defendants-Appellants. Corporation, No. 65-54.
Gen. Fifth District. 1, 1966. July Rehearing August 4, 1966. denied
489 Hoagland, Alton, defendants-appel- for Green Schafly, Godfrey Inc., lants, Sons, & J. & J. Wuellner Hamilton, Listeman, Bandy Fitzgerald, Alton, & defendants-appellants, Federal Louis, of East St. Supply Company. &Steel Chicago, Hirsh, Gorman,
Clausen, Miller & Edwardsville, Burroughs, Burroughs, Simpson & plaintiff-appellee.
GOLDENHERSH, P. J. appeal Court from the order of Circuit Defendants costs, County dismissing, with their amеnded of Madison dismissal, in the order Included counterclaims. Act, (2) Practice required by of the Civil is section just finding final and there reason that the order is *3 delaying appeal. or for enforcement alleges execution оf a contract the Plaintiff’s defendant, & the J. J. Wuellner plaintiff and between Replacement Sons, and of Inc., providing for “Removal 48,200 square of roof deck over exist- feet approximately defendant, Building 38,” ing that the J. J. Brass Mill contractor, Sons, Inc., defend- prime and as & Wuellner Company, ant, Supply as its subcon- Federal & Steel negligence of wilful tractor, guilty and acts were plaintiff’s misconduct, of which as result and wanton by fire, building damaged inter- its business was was damage. great It loss and also rupted, it and suffered provision requiring de- charges contractual breach injury damage, good paying for “to make fendant arising by plaintiff out of said sustained and losses . .” contract. . counterclaims, answered, separate and filed
Defendants allege amended, the contract between which following provision: parties contained arrange coverage and “Owner will fire extended interest, to cover own also insurance but on the contractor and sub-contractors including project, supplies to entire and materials project. However, be in the used insurance will this tools, clothing, not extend to the automobiles personal any property other owned or mechanics tools, staging, equipment, scaffolding, towers forms owned or rented or contractor sub- contractor, capital sum of which is not included Similarly, of the work. the insurance cost temporary will nоt cover All of structures. responsibility excluded shall of the be respective contractor or sub-contractor.” alleged The counterclaims further that defendants are plaintiff informed and believe not comply did with agreement, coverage but secured fire extended only; insurance cover its plaintiff own that if interests complied agreement, had with the defendants would be “named insureds” and covered under the fire and ex- coverage policies, tended and neither nor an against insurer could maintain an defendants; action sought if recovers in its com- plaint, damaged will have defendants been to the extent any recovery by plaintiff’s such virtue brеach of contract. Defendants’ counterclaims conclude with prayers judgment against plaintiff any sums for plaintiff. found liable defendants
Plaintiff’s motions to dismiss counterclaims state *4 they allege that the counterclaims are defective in that obligation, a of a breach nonexistent contract required procure contract it to fire and extended cover- age only, insurance to cover interests require liability did not it to indemnity secure or insur- behalf, ance in defendаnts’ if defendants are found
491 negligent parties, to Tbe under the contract between liability subject indemnity, and the counter- is relief claims fail to of action in state a cause conditionally prayed lia- predicatеd upon defendants’ is bility complaint, and “therefore the relief under governed by prayed for in the counterclaims is be a in herein matters involved the lawsuit is separate of action.” cause 110, 38, (c Ill Act
Section 38 of Practice § Civil 1965) provides a defendant Rev that a demand Stats set-off, against of in the nature a “whether recoupment, equity, other in demand or cross-bill cross any , may a in pleaded . demand wise . . be cross action, a рleaded called counter and when so shall be claim.” 424, Supreme Yarwood, Ill 14
In Stow v. arising out Court held that mutual demands the same being against subject matter, capable each balanced other, adjusted action, may one and a defendant be in against may, by plaintiff, recoupment, claim use his mitigation damages. “Recoupment in is in nature alleges cross-action, defendant that he has a where injured by part of of another been breach founded, un on the action is the contract recouped.” v. liquidated be so Luther App 596, purpose The 38 Mathis, Ill 601. section 211 types of the various the distinctions between abolish cross-demands, and therefor thе counterclaim. substitute clearly in the nature counterclaims are Defendants’ and, such, pleaded recoupment, are manner Act. contemplated Practice Civil pleadings provides that Act The Civil Practiсe liberally doing with a view be construed sub shall 110, parties. 33(3), justice between the Ch § stantial 4 of the Civil Practice Act Ill Rev 1965. Stats Section liberally construed to the provides the Act shall *5 finally deter speedily end that and be contrоversies rights according parties. mined to the the substantive (C 110, 4, 1965.) Ill Liberal Rev construction § Stats sufficiency of the requires Act the Civil Practice action, pleading purporting a or a state a cause can, defense, by pleader be determined whether the pleading, prove of his support under the a of facts in set claim, defense, or his which would entitle him relief. Simply stated, complaint a or counterclaim should be for failure to dismissed state cause action unless appears pleader prove it can of facts in set support of his claim him relief. which would entitle provision upon
Plaintiff contends that the contractual arrange required which the counterclaims are based it to coverage only “project,” fire and extended which being specific it as limited to defines work covered being contract, e., replaced, i. roof and the argues supporting complaint substructure it. It that the only plaintiff’s building, seeks to recover machinery equipment contained, and therein interruption business, recovery seeks no damage project for the upon to the which the defendants engaged. distinguishes were It between the roof work “project” which building, it refers to and the machinery equipment, which it describes “its own property.” alleges In the it that defendants’ negligence and wilful and wanton misconduct “caused a sub-ceiling, fire spread in the aforesaid to the premises plaintiff.” of the
In the appeal, decision of this we do not reach the extent of issues defendants’ insurable interest project, comprisеs in the nor project.” what “entire pass We need on defendants’ contention that an action against them an insurer would barred reason of being insureds,” “named for the reason present posture of the need case we determine *6 dismissing amended erred in whether the circuit court Schaefer, speak by Mr. counterclaims. As Justice stated ing Baltis, 34 Ill2d Supreme in Mahin v. for the Court legal 137, 413, 132, page 216 at “Factual and NE2d presented are not now thеreafter arise issues for decision.” allege of a con-
The amended counterclaims breach “arrange plaintiff fire provision requiring to tractual only coverage to cover not and extended insurance” interest, “on the of the defendants own but also that project.” entire obliga
Assuming contractual plaintiff’s arrange for the required tion it to such insurance plaintiff to by plaintiff, if failed “project” defined any by arrange insurance, suffered defendants such loss by counterclaim. reason thereof would be recoverable damage recovery to plaintiff The fact that seeks no preclude from assert “project” not defendants does Mathis, ing Luther v. their claim counterclaim. enough supra. prayers for relief are broad Defendants’ loss, encompass in the amount of defendants’ to a verdict objected any not proved, if has 110, 34, Ill Rev 1965. prayеr. form of Stats Ch § Testing sufficiency rule counterclaims say prove stated, cannot cannot that defendants we above support of their counterclaims which in a set facts relief, and the circuit court erred entitlе them to would dismissing counterclaims. the amended in judgment of the herein stated the
For the reasons County reversed, and the of Madison Court Circuit deny remanded, plaintiff’s mo- with directions cause counterclaims, amended and for tiоns to dismiss opinion. with proceedings consistent this further Judgment remanded with directions. reversed cause MORAN, J., concurs.
EBERSPACHER, concurring. J., specially agree dismissing IWhile the trial court erred in Mathis, counterclaims, I v. do not consider Luther 596, 601, authority App 211 Ill for the made statement opinion, recovery in the “The fact that seeks damage ‘project’ preclude to the defendants does asserting by counterclaim,” from nor I claim do agree with that statemеnt.
Examination each discloses count, prayer plaintiff’s premises is for property, plaintiff’s or premises other or project.” upon than entire “the We are not called determine the extent of interest defendants’ insurable *7 in project, comprises project” nor what the “entire plaintiffs complaint because their to recover all seek damages, including their part on those that their property, pleadеd they clearly which the contract shows agreed Therefore, allegations to insure. of a breach properly the contract to recoupment are in insure this case, properly by counterclaim. сlaimed plaintiffs, complaint sought recovery
Had their only damages for property, other than “the entire project,” upon determine, would passing we be called in sufficiency on the counterclaims, of the аmended project” consisted; what “entire and if we deter- project” building mined parts that “entire included of the being repaired, proof not of failure to would insure subject proper counterclaims; of the matter but if it project” determined was “entire consisted only building parts being repaired, the roof substructure, then, deck appear since it would from pleaded duty contract had no to insure damaged property part was not was project,” the “entire the counterclaims would state complaint action. prays cause of Since for all damage plaintiff’s property damaged, to all of both that duty in which had a to insure defendant’s duty interest, and that in to insure which there was interest, require- meet defendant’s counterclaims interest, requirements meet the ments counterclaims Although Mathis, supra. plaintiffs contend of Luther v. damages they only than property, for other seek project,” complaint entire does embraced “the plaintiffs conceded that so and defendants have not state only damage is includible seek other than project” plaintiffs nor did fit to amend in “the entire see specifically claim their they damage property on which were not obli- gated to defendants’ interest. insure