*1 1105 73, par. Stat. ch. (Ill. cause Rev. reasonable and without vexatious of this complaint applicability plead its 767). The District did not bond, its present it surety did not provision to the trial, it refer surety’s nor did action claim the vexatious nature of Further, did not the trial court post-trial in its motion. statute memorandum comprehensive statute its mention this section of the that the District Therefore, the record appears in this case. from first for the the instant case applicability of this statute to arguing attorney fees Thus, has the issue of time the District waived appeal. 443, 453, 362 Ill. 2d v. Dixon 66 under the Insurance Code. Snow 1056. of some in the absence attorney fees is not authorized An award of Practices Com. Employment v. Fair statutory City Chicago basis. 108, 113-14, 1156. (1976), 65 Ill. attorney authority permit that would the allowance We find no however, upon the apparent, imposes It is that a denial of fees fees. While the origin Meneley’s negligence. District a that has its burden compensatory District is not entitled to windfall the form extensive attorney regarding punitive damages, existing nor to rules recovery. fees a full leaves without
Judgment affirmed.
MILLS, WEBBER, J., J., P. concur. ALEXANDER, PEARSON, INC., Plaintiff-Appellee, D. VANCE v. ROBERT Service, Defendant-Appellant. Peoria Scale d/b/a Fourth District No.
Opinion August filed *2 WEBBER, J., concurring part dissenting part.
Moehle, Reardon, Ltd., Day, Washington (Bradley Smith & W. Swearingen, counsel), appellant. for Saikley, Associates, Danville, Saikley,
Gilbert appellee. Garrison & for Mr. GREEN delivered the of the court: JUSTICE Defendant, Alexander, D. appeals judgment Robert the circuit court County plaintiff, of Vermilion trial awarding entered after bench Pearson, Inc., $6,665.56 Vance compensatory damages the sum of for $10,000 breach of contract punitive damages in an sum additional for fraud and deceit plaintiff’s making inducement for the con- tract. We judgment reverse the compensatory damages for and remand only question case to the trial court for a new trial puni- amount compensatory damages. judgment affirm the We tive to a written memorandum
The suit arose from contract reduced agreed defendant 2,1977. By its terms August by parties signed north by plaintiff and located a farm owned truck scales on install a set of work that the stated County. The document in Vermilion Ridgefarm completed it was not September completed by would be October was filed complaint original later. The many until months charging complaint upon an amended was tried at bench 1978.The case in count II. fraud and deceit I and the count the breach of the I, breached that, in count he alleged dispute Defendant does He asserts the installation. timely complete failure the contract II, charged Count proved. were not awarded complete promise to deceit, made the alleged defendant “knew, or should when he September installation and that he would was false representation reasonably known that said allegations Further by” that date. the installation complete unable to intending it to be relied promise that defendant made stated Count II asked and that did so to its detriment. II the court erred maintains that as to count
damages. Defendant involved in which he had been admitting evidence of other transactions fraud and deceit. guilty him prove and that the evidence did not that a is his contention heart of his latter assertion does not constitute performed that it be promisor without intention may be based. of fraud upon which a determination that, event, punitive damages an award of maintains He also *3 improper. compensatory damages its claim for
Plaintiff’sevidence from transporting grain harvested expenses those incurred concerned prior to trans- weighing in Ridgefarm its various farms to a scale for were to be the scales it the where porting storage facility to a location in the damages were that no such installed. Defendant asserts find the circumstantial parties, the but we contemplation of that his understood that defendant presented to be sufficient to show 15, 1977, injure plaintiff. would by September failure to install the scales Thus installed. having the scales purpose had a for Obviously, plaintiff farming it plaintiff’s that in method must have known defendant sale. an elevator for it was taken to weigh grain its before needed to knowing when he testified to Defendant admitted as much It installed. scale was until the weigh grain its elsewhere would have to installed been have to have that the scales would was also obvious weighing for use those scales for September about Pearson, principal Vance harvests. soybean both his 1977 and corn name, probably he testified plaintiff corporation bearing his operation to defen- farming plaintiff’s substantial explained the extent of dant.
Allowance to plaintiff expenses for incurred in additional trucking grain resulting from defendant’s breach of the contract would be analogous to that by buyer which would be recoverable for seller’s warranty upon breach of goods sale of movable under the terms 715(2)(a) (Ill. section of the Uniform Commercial Code Rev. Stat. 2— ch. par. 715(2)(a)), recovery which allows for: 2— “(a) any general resulting particular loss from requirements and needs of which the seller at the time of contracting had reason to know and which could reasonably prevented by not be cover or otherwise.”
Testimony at an showed the scale to be built area three- fourths of a Ridgefarm plaintiff’s mile north of on one of farms. Its other east, farms were Ridgefarm being west south of with one miles the grain storage south. When from brought most of the farms was to the facility north of Ridgefarm transported through would have had to be Ridgefarm. The weighing facility Ridgefarm used was about one- of a quarter highway through mile east of the north-south the town. Thus grain shipped much the would trucks would have way travel about one-half out of the mile because of however, farm, unavailability of scale. grain from the north transported would have had to miles in use an additional two order to Ridgefarm facility. As the evidence showed that were the scales unavailable both 1977 and 1978 crop years grain and that some 600 truck loads of scale, to the Ridgefarm taken some obviously there substantial expense additional by plaintiff incurred because the contract breach. agree But we adequately defendant that it was not established to be $6,665.56 as much as the presented awarded. The evidence no breakdown how much farm. he grain came from A trucker testified that each miles, charged 5 cents a to haul 2 to 2% grain bushel distance of his did state that Vance testified that in going not to be rate. Pearson $2,000 opinion salary by plaintiff him in 1977and paid corporation $4,000 hauling salary performing 1978 was the additional breach, because but the lack data required self-serving testimony give he based nature of extremely small probative plaintiff’s value as to amount of $6,665.56 are reversing compensatory damages award of we Rather, not we are ruling that some actual recoverable. *4 a remanding that at recoverable and ruling damages least are some Accordingly, award of determination of that amount. the to by necessary actual damages not vitiated the rule that punitive damages. v. All-Steel Inc. Equipment, Tonchen 13 Ill. 300
We, thus, finding upon as to II which turn attention to the count our action The elements of the award based. punitive damage the Zeilenga Millsin Stette set forth Mr. fraud and deceit were Justice 1347,1349, Industries, 753, 757, Inc. following statement: the upon actual it is incumbent to prove
“In order was an untrue misrepresentation establish that defendants’ fact, falsity its knowledge with statement of material made purpose influencing party who relied the other statement.” mentioned, promise that
As we have maintains defendant’s 15, 1977, by September install the scales constituted under the facts the case. testimony agreed that to the
Defendant when he admitted date, completion he knew that reasonable September trial court that could not meet that date existed. The likelihood he unexpected prevented which have determined that no event occurred meeting defendant from the date. Defendant testified that the existence work, storage impeded facilities at the but Vance sight of some that, testimony believed Mr. Pearson’s refuted and the court could have presented by persons two had Testimony Pearson. was also who made years similar contracts with defendant for scale installations the two that prior to the instant Each testified contracts had a contract. their missed, completion and each grossly definite date defendant great to do work. There was difficulty getting testified defendant convincing thus clear and which the trial court could have evidence from completion knowing that that agreed concluded date defendant it. intending comply meet it and with That could not therefore not also (1) court could have found defendant contract, agreeing making intent of into to the deceiving plaintiff $8,000, payment (2) plaintiff shown down was deceived promise and thereon to its relied detriment. the evidence of
Defendant asserts
admission and consideration of
error,
citing
the two
Brown Brown
even
transactions
brother for
App. 3d
make not, installations which he not, did and apparently keep. The operandi modus there was common to that here. Evidence of two transactions also showed likely defendant’s intent here and bore knowledge that performance on time would They be difficult. Smith for v. National admissible & Ins. these reasons. Accident Co. Life 566, (1936), 128; 286 Ill. App. Blalock v. Randall 4 N.E.2d (1875), 76 Ill. trial court also testimony heard concerning other transactions defendant, involving but later struck that testimony. Admission testimony concerning the two transactions proper. considered was
Professor Prosser has general stated the rule in country this on the question a promise of whether misrepre- future conduct can be a sentation to be as follows: intention,
“On the other hand statements of of the whether speaker himself or of usually regarded another statements mind,’ 1882, fact. ‘The of a man’s state said Lord in ‘is as Bowen a fact much as the state digestion;’ phrase catch has repeated explanation been ever in since of the distinction between prediction any and intention. But at statement of an is least much present mind; an assertion of fact of a state of justification regarded distinction must be the intention is fact, by party may reasonably as a material which the adverse be promise, A expected govern to his conduct. which carries an cary a implied representation present that there is intention to reliance; out, recognized everywhere proper as a basis be, may promissory which are form assertions of intention persuasive. All although they always, quite are not as material and a a regard present few a mistatement of a intention as courts fact; a and a without of material made perform the intent to it is held sufficient basis for an action to deceit, A equitable very restitution or other relief. purchase goods preconceived with a common illustration is the pay opened not to them. The door is thus to a tort intention remedy may important over action on advantages offer itself, recovery including possibility specific goods surrendered the course of transaction.” Prosser, §109, (4th 1971). ed. See Torts at 728-29 Restatement (Second) (1977). of Torts §544 that Illinois has foregoing, a footnote to the Prosser indicates §109, 90.) (Prosser, rule. 729 n. cases
rejected general Numerous 775, Brodsky v. Frank (1930), 342 Ill. 173 N.E. have so. In done promised, intent plaintiff’s corporate claim that shareholders without perform, shares of stock to him he convey to the future certain
Ill. to be a conveyed was held not corporation certain assets to the recently misrepresentation giving holdings rise to fraud. Similar Corp. Zaborowski Rosner made in Hoffman & Sanitary District v. Metropolitan Pontarelli 356 N.E.2d Inc. Zaborowski Sons, 905. In an developer’s representation property that a fraudulent allegation way, order induce the developed owned would be certain nearby developer causing the buy property other from the detriment, purchase thereon to his property reliance to fail allege held fraud.
In Roda Berko the trial court a complaint seeking grounds dismissed set fraud. It aside deed grantor elderly, that the ill read alleged woman who could not *6 English grantee represented and that the (1) write had to her a property factory would be used to build which would the value enhance when, nearby actually, (2) of her land to it junkyard, he intended use for a failed to tell her that causing deed no contained condition thereon, if property factory (3) to revert to her no was erected and promised to in reconvey to her three no then factory months when he had making erected no intention of such The reconveyance. complaint alleged many representations also by grantee made to the grantor she trust him. supreme could The court deemed the complaint to state a cause action. recognized the that a promise perform Illinois rule to
act accompanied
by
perform
an intention not
to
a false
not
representation upon
based,
a
charge
which
ordinarily
be
but
that an exception
stated
to that rule existed when
promise
“the false
or
representation of
or of
intention
future conduct is the scheme or device to
accomplish the
thereby
fraud and
and
cheat
defraud
of his
another
(401
340, 81
property.”
912, 915.)
N.E.2d
The court considered
the case to
rule,
be different from cases
in
in
cited
because
promise
representation
those the
not been
to be a
shown
by
party
“deliberate fraud
which a
had been induced
act
to his
to
damage,
them
none of
was the
existence
the fraud relied
by
335, 341, 81
anything
shown
other than the
promise.”
broken
401 Ill. 2d
Roda,
Subsequent
supreme
to
has held a
promise
court
Willis v. Atkins
perform
without
intent
to
to
a
misrepresentation
245, 106
Steinberg
Medical
412 Ill. 2d
Chicago
School
school had in a catalog applicants would be evaluated and when, fact, selected on the basis of their merit the school intended to make the upon monetary determination contributions made or on behalf of them. The court stated:
“We general concede the recovery rule denies for fraud based aon false representation conduct, of intention or future a but there is recognized exception promise representation where the false future alleged employed conduct is to be the scheme accomplish the fraud. 69 Ill. 2d [Citations.]” 634, 641.
Distinguishing general promise between the rule Illinois future conduct perform misrepre- made without is intention to not sentation exception promise to the rule which makes such a misrepresentation if it is accomplish easy. the scheme to fraud is not As fraud occurs when misrepresentation is made with intent to induce a rely victim to thereon and a victim is deceived and relies thereon to his detriment, such misrepresentations ordinarily schemes the victim is defrauded regardless of whether the to the declarant’s future that the intent or otherwise. Thus would seem exception tends to engulf general and devour much of the rule and lessen any disparity majority explained between the Illinois rule as rule by Prosser. indicated,
As we have we deem the evidence the trial sufficientfor court to have promise per- determined that defendant made the by September formance intending keep promise intending plaintiff rely on and that relied it to its so, If detriment. the false would have been an intended scheme defraud and would be actionable under the rule stated *7 Steinberg, the most recent supreme pronouncement court the issue. on
Defendant
argued
has
that
plaintiff permitted
because
defendant to
contract,
complete
any
the
it has waived
cause of action for fraud under
Andrews,
theory
the
Bulley
Symons
(1975),
of
&
v.
Ill.
Corp.
App.
Inc.
25
696,
3d
323
Eisenberg
(1963),
N.E.2d
and a statement in
v. Goldstein
617, 195
964, 12
29 Ill. 2d
U.S.
L.
(1964),
cert. denied
377
Ed.
2d
Ill. sufficiently gross not the fraud was contends that Lastly, defendant However, only was there damages. not punitive of justify an award by making defrauded that defendant here this keep that did that he did not intend performance of from similar that had occurred damage the others being after aware of other victims. promises to stated, entered portions judgments the all
For reasons and is reversed damages except compensatory the award of affirmed new County of Vermilion circuit court the is remanded the case damages. compensatory the amount trial determination of on the in and part, in remanded. part, Affirmed reversed CRAVEN, J., concurs. WEBBER, in concurring part dissenting part:
Mr. and JUSTICE ordinary subject I new trial the concur the remandment for a on my although grounds I do so on far different from those of damages, vehemently prop- I from the colleagues majority. most dissent ordinary punitive will charge osition that a claim for damages. majority apparently ordinary damages holds
excessive, assigned generalizations but no reasons are other than as to the purported plaintiff’s inadequacy evidence. There is no indication However, be of quality evidence will better on retrial. since contract, defendant has admitted a breach is entitled to least damages. nominal ordinary
I I damage concur in the award because reversal of jury, in this judge, believe the trial who sat case without showed punitive prejudice passion damages award of posture disentangled such passion prejudice case cannot be from ordinary the award of Lines, Safeway
In Bumblauskas Inc. South Suburban 52, 60, 143, 147, question “The court said: is will damages judge one for the trial in a trial nonjury decision upset passion not be unless prejudice so excessive as to indicate part.” Queen Behm matter punitive damages the court said: “The allowance of is a determine, within trial a determination court’s discretion and such will of that discretion.” disturbed the absence of abuse question Courts Illinois have with the struggled ° “° ° many years. early supreme In an case said: court damages, either giving exemplary authorize the vindictive [T]o *8 Ill.
malice, violence, oppression or wanton mingle recklessness must controversy. The complained act partake of must of a criminal or wanton nature, else the sought amount to be recovered must be confined to compensation.” City Chicago v. Martin (1868), 241, 49 Ill. 245. The Martin decision dealt personal injuries, and context greater punitive number of damage claims are made. However, as recently as 1973 there is found a firm echo language Martin in a breach of contract case: “This punitive rule [denial damages a breach of obtain, however, does not in those case] exceptional cases where the breach amounts an independent, willful tort, in which event exemplary damages may be proper recovered under allegations malice, wantonness, Wallace v. Prudential oppression.” Ins. Co. 623, (1973), 629-30, Ill. 344, 3d 299 N.E.2d 349.
Two recent cases flatly have stated punitive damages are not (Ash v. Barrett recoverable a breach of contract action Illinois. Homebuilders, Alsip (1971), 414, 1 Ill. App. 149; Inc. v. 3d Shusta (1972), 65, 6 Ill. App. 3d 509.) 284 N.E.2d In the latter case the court said:
“The theory behind this rule rests a distinction drawn compensation between punishment. and If general purpose underlying the law of damages promote security is to prevent disorder, out, points Corbin and breaches of contract do not cause as much resentment of other physical or mental discomfort crimes, as do wrongs called torts or then the remedies needed to prevent satisfy breaches of contract and injured party are not as severe as punish those needed to the tort feasor or criminal.” 6 Ill. App. 509, 284 N.E.2d
It has long been the rule in Illinois that in a breach of contract suit the effort should be to restore the at least as good position as he been, would have had the contract performed, via the vehicle of money damages. In the contract action this is much do than in easier to tort where such intangibles pain suffering must be assessed. The result is that punitive damages in contract actions are sometimes permissible but are generally suspicion, viewed with downright hostility. malice, pleading core element of proof such a case is Martin; violence, Wallace. oppression or wanton wickedness. cases, bar,
Some including attempted the case at to evade strictures However, of the rule pleading simple fraud. Laughlin
type cited in the majority opinion (Zeilenga) is insufficient. In Hopkinson 292 Ill. 126 N.E. court allowed “willful, wanton, for what it called grossly fraudulent misrepresentations.” Wilful obviously something and wanton fraud is more than ordinary perhaps fraud and should even have a different name it. In Russow Bobola compose since different elements house, the court concerning the sale of App. 3d but dismissed on motion fraud to stand ordinary allegations allowed support. that the facts did not upon finding wilful and wanton count 286N.E.2d v. Weissman In Sears *9 at in the case bar. than those aggravated facts similarbut much more After air-raid shelters. corporation to build Defendants had formed they $50 entered into treasury to about looting corporate down They took her elderly build a shelter for her. contract an woman to only perform. did not The court allowed money, divided and then compensatory damages. case, Hospital Care Ledingham v. Blue Cross Plan Another recent Hospital Corp. (1975), Service 338, 356 that a suggests (1976),64Ill. 2d grounds
rev’d on other support a parties power between disparity bargaining claim, in that case. such was not allowed punitive although bar, then, proof of pleading I find no nor Turning, to the case only simple malice, anything, appears If there oppression. wantonness fraud, go per- to the total foregoing cases does and unlike contract, performance. It is note- only to the time for formance of agreement a verbal followed worthy that this consisted verba, in haec nor provision stating There no ordinary invoice. essence, substance, was some evidence that time was of the there that there was performance. The central fact is tending to excuse late late, plaintiff got completed, albeit performance, the scales were workmanship nor poor claim of bargained for. There has been no what consequential Any damage by plaintiff suffered defect materials. century hands on majority opinion lays violent and not direct. The Illinois law. correct, shoerepairman who then majority opinion
If the subject Thursday” could be ready by the half-soles “next promises to have the dot. right claim he delivers punitive damage unless was reached that the result this case persuaded I am therefore infected the the trial court which passion prejudice because of the ordinary the award of proceeding. I would therefore reverse entire only. I would reverse and remand for a new trial on those without remand the award of