Herbert W. Jaeger & Associates v. Slovak American Charitable Ass'n

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

JUSTICE UNVERZAGT

delivered the opinion of the court:

In its petition for rehearing, Jaeger complains that the portion of this court’s opinion relating to benefits conferred by a breaching builder on the property owner is based on authority not cited by either party and fails to distinguish the authorities on which Jaeger relied. The courts in both Brewer v. Custom Builders Corp. (1976), 42 Ill. App. 3d 668, and Royal Ornamental Iron, Inc. v. Devon Bank (1975), 32 Ill. App. 3d 101, on which Jaeger predominantly relies, recognized that a party who breaches after only partially performing a contract is entitled only to the benefits conferred on the property owner less damages caused by its failure to complete the contract. (Brewer v. Custom Builders Corp. (1976), 42 Ill. App. 3d 668, 673; Royal Ornamental Iron, Inc. v. Devon Bank (1975), 32 Ill. App. 3d 101, 107.) The cases are applicable to the instant case only to the extent of that holding. The courts in Brewer and Royal Ornamental went on to find that the builders in those cases had, in fact, substantially performed and awarded damages based on substantial performance. Brewer v. Custom Builders Corp. (1976), 42 Ill. App. 3d 668, 674 (plaintiffs’ subsequent actions demonstrated that they accepted the builder’s performance as substantial); Royal Ornamental Iron, Inc. v. Devon Bank (1975), 32 Ill. App. 3d 101, 108 (finding that “substantial performance by Royal” required the owner to pay the contract price less the cost of curing the deficiencies in performance).

Here, by contrast, Jaeger left the defendant association with less than half a building, which the association inevitably had to complete or remove. There was no substantial performance, and the association’s tentative and temporary plan to complete construction could not reasonably have converted Jaeger’s work into a substantial performance of a building contract. The trial court therefore properly limited Jaeger’s potential recovery to the only benefit it conferred upon the association — the windows retained by it.

HOPF and DUNN, JJ., concur.