dissenting:
I do not agree with the view taken by the majority with respect to the order dismissing Counts I and II of the amended complaint. .
It is well settled in Illinois that in the absence of contractual provisions to the contrary, a building or construction contractor has the right to recover damages resulting from the delay caused by the default of the contractee. Underground Construction Co. v. Sanitary District, 367 Ill. 360, 11 N.E.2d 361 (failure to pay installments of price during course of construction); Tobey v. Price, 75 Ill. 645 (delay in furnishing materials for work on building); Consumers Construction Co. v. County of Cook, 1 Ill.App.3d 1087, 275 N.E.2d 696; O’Heron v. American Bridge Co., 177 Ill.App. 405 (delay in delivery of material for building); W. H. Stubbings Co. v. World’s Columbian Exposition Co., 110 Ill.App. 210 (failure to have buildings ready so work could proceed within time contemplated by contract); Michigan Avenue Methodist Episcopal Church v. Hearson, 41 Ill.App. 89 (failure to have work of other contractors on building performed promptly); Nelson v. Pickwick Associated Co., 30 Ill.App. 333 (failure to have building in such a state of forwardness as would enable work to be performed within time limited); see Annot., 91 L.Ed. 48 (1946); Annot., 115 A.L.R. 65 (1938); Annot., 70 L.Ed. 438 (1925).
As stated in Consumers Construction Co. v. County of Cook, 1 Ill.App. 3d 1087, 1094, 275 N.E.2d 696, the most recent case to consider this matter:
“* * * we hold that in a public works contract * * # where material delays arise without fault or culpability of the contractor, he may at his option either terminate the work or complete performance of his contract. In addition, we hold that where the owner bears responsibility for the delay, the contractor has an action against the owner for such damages as reasonably and proximately resulted from the delay; subject to the applicable provisions of the contract.”
The complaint must, in order to be legally sufficient, allege the following: There was a delay in the work of the contractor; the contractor was damaged by the delay; there was a default by the contractee; and the contractee’s default was the cause of the contractor’s delay.
In the instant appeal, the only question regarding Counts I and II is whether the plaintiff sufficiently alleged a default by the defendant. Here, the amended complaint alleged that the defendant, Illinois State Toll Highway Authority, had the duty to prepare construction sites, as described in the contract, on or before the starting date of the contract, but defendant failed to have these construction sites prepared and available for initiation of contract work. The complaint attributed the failure to prepare construction sites to the faulty and negligent scheduling by the defendant of the preparatory contracts. In particular, the defendant allegedly scheduled the same completion date for the preparatory work and for the work undertaken by the plaintiff.
I believe the plaintiff has sufficiently alleged a default by the defendant. Accordingly, I would reverse the order dismissing Counts I and II of the amended complaint.
In W. H. Stubbings Co. v. World’s Columbian Exposition Co., 110 Ill.App. 210, the contractor, as plaintiff, clkimed the owner failed to have the buildings ready, so that the contractor could proceed with the work within the time contemplated in the original contract. The court, relying on Tobey v. Price, 75 Ill. 645, and Michigan Avenue Methodist Episcopal Church v. Hearson, 41 Ill.App. 89, held it was proper to allow damages for such a delay.
In Nelson v. Pickwick Associated Co., 30 Ill.App. 333, 335, the contract contained the following provision:
“ 'Should delay be caused by other contractors, to the positive hindrance of the contractor hereto, a just and proper amount of extra time shall be allowed # # # provided they shall have given written notice * * * at the time of such hindrance or delay.’ ”
The contractor was delayed by other contractors, and, due to a rise in wages, he suffered damage which would not have resulted if he could have performed his contract within the time stipulated by him. The court held the provision for the allowance of extra time was not the only remedy of the contractor, and that he could recover damages for additional cost caused by the delay of the other contractors. In holding the contractee liable for the delay occasioned by other contractors (whose work preceded that of the plaintiff), the court based its decision on the ground that it was the legal duty of the contractee to keep the work in such a state of forwardness as to enable the contractor to perform the contract within the time specified. (See also Michigan Avenue Methodist Episcopal Church v. Plearson, 41 Ill.App. 89, where the contractor claimed the delay was caused by the failure of the contractee to have other work performed on the building on time. Although no completion date was fixed in the contract, the court held the contractee liable since the contract implied the contractee “will so arrange with reference to the other work on the building” in order that the contractor could complete his work within a reasonable time.)
These cases support the proposition that a contractee is under a legal duty to keep the work in such a state of readiness as to enable the contractor to perform the contract within the time specified. Judged by this standard, the plaintiff’s amended complaint was legally sufficient.
There remains for consideration the question whether the contract contained any provisions negating this duty. Ordinarily, recovery for a delay in construction work due to an act of the contractee will be precluded by the insertion of a so-called “no damages” clause, a provision against liability for delays, if the particular delay was one falling within the general terms of such provision. (Annot., 10 A.L.R.2d 801 (1950); see Herlihy Mid-Continent Co. v. Sanitary District, 390 Ill. 160, 60 N.E.2d 882; Underground Construction Co. v. Sanitary District, 367 Ill. 360, 11 N.E.2d 361; Ryan Co. v. Sanitary District, 317 Ill.App. 549, 47 N.E.2d 576, aff'd, 390 Ill. 173, 60 N.E.2d 889.) The question therefore presented in cases involving such provisions is whether a particular delay falls within the terms of the particular provision.
In the instant appeal, the trial judge relied upon various specifications, which were made a part of the contract, when he dismissed the amended complaint. The record discloses that neither the contract nor the specifications made a part thereof contained a provision precluding recovery for damages due to delays caused by the defendant.
Specification 108.2, concerning the progress schedule, gave the defendant the right to require plaintiff to provide additional crews and to work additional shifts and hours, if the plaintiff fell behind the scheduled progress. In no way can this provision be construed as precluding claims by the contractor for damages due to a delay. Nor can specification 105.14, involving requests for extensions of time, be so construed.
The provisions relating to changes or revisions in the work made by defendant, or by suspensions or discontinuances ordered by defendant, do not relieve defendant of liability for delays caused by its acts. See e.g., J. J. Brown Co. v. J. L. Simmons Co., 2 Ill.App.2d 132, 118 N.E.2d 781 (provision of subcontract giving general contractor the right to direct the sequence or general progress of work did not relieve it from liability to subcontractor for delay); W. H. Stubbings Co. v. World's Columbian Exposition Co., 110 Ill.App. 210 (provision of contract giving contractee the right to make changes during the progress of the work not considered as relieving contractee of liability for delay).
The majority relies, in part, upon a provision relating to the scope of payment, apparently, to bolster its view that the right of recovery was expressly limited or precluded. I cannot understand how this provision, as set forth by the majority, deals in any manner with the question of liability for damages due to a delay.
If the defendant intended to protect itself from claims by the contractor due to delays caused by its acts, an appropriate “no damages” clause could have been inserted in the contract. The contract did contain a provision precluding recovery for damages due to the delays of other contractors. (See, e.g., Cook County v. Sexton, 16 Ill.App. 93, aff’d, 115 Ill. 174, 28 N.E. 608 (under a provision in a contract expressly relieving the contractee from liability for delays occasioned by other contractors, a contractor was held not entitled to recover damages for delay which was due to the default of another contractor); cf. Nelson v. Pickwick Associated Co., 30 Ill.App. 333.) This factor alone supports the view that the question of damages due to delay in general was considered by the parties, but the right of recovery for delays caused by the defendant was neither limited nor precluded by the contract.
The majority, however, determines the absence of a “no damages” clause, respecting delays caused by the defendant, “is compatible with the conclusion that the contract itself imposes no duty upon defendant » » e» (Emphasis in original.) I believe this view does not comport with the cases cited above.
In Herlihy Mid-Continent Co. v. Sanitary District, 390 Ill. 160, 60 N.E.2d 882, and Underground Construction Co. v. Sanitary District, 367 Ill. 360, 11 N.E.2d 361, recovery was denied the contractor because of the presence in the contract of a “no damages” clause, by the terms of which the contractor agreed to waive all damages, except in certain minor respects not here relevant. Both opinions support the proposition that a contractor has the right to recover damages sustained by a delay which has been brought about by the contractee’s default.
Unlike the majority which concludes that no “established duty” was aUeged in the instant appeal, I believe the IUinois authorities herein relied upon amply demonstrate the existence of such a duty, subject to modification by the parties, as set forth in the express provisions of the contract. Since the contract in the case at bar contains no express provision either negating or modifying the defendant’s common law duty to keep the work in a state of readiness, I believe the amended complaint sufficiently alleges a breach of that legal duty.
It would indeed be anomalous to hold no cause of action has been stated against the defendant as a matter of law, for such a holding would support the proposition that a contractee is not liable for delay, even in the absence of a provision precluding recovery for such delay. The effect of the majority holding would be to render the “no damages” clause superfluous, since the contractee would arguably not incur liability whether or not such a provision was included in the contract.
On several instances the majority points to the absence of discussion concerning a particular contractual provision, and assumes this omission means that the particular contract did not include such a provision. I do not believe such an assumption is valid, for, as was stated in the case of Consumers Construction Co. v. County of Cook, 1 Ill.App.3d 1087, 1093, 275 N.E.2d 696: “In these public works cases, the contracts and specifications axe generally of great length so that it is often difficult to tell from an opinion by the court precisely what provisions are included in the contract documents.” Thus, the absence of discussion with respect to a particular provision does not necessarily mean the contract did not contain such a provisión; the most to be said, with any assurance, is that even if the contract did include the particular provision, the court did not consider its insertion dispositive.
The majority also distinguishes Consumers Construction Co. from the instant appeal on the basis that the contract there contained a provision stating time was of the essence. The court in the Consumers case said, however, that the legal basis of the contractor’s claim bore no relationship to the question of for whose benefit the time limitation was included in the contract. Instead, the court concluded the case law supported the contractor’s contention that it was the duty of defendant as owner to take reasonable steps to avoid frustration of plaintiff’s efforts by lengthy delays for which plaintiff had no responsibility.
The majority apparently believes that since the contractee did not expressly agree to perform some affirmative act which was necessarily preliminary to the contractor’s performance, there could be no. liability on the part of the contractee. This argument seems to permit recovery when the contractee agrees to perform some preliminary act, but not when the contractee fails to take some appropriate act. The distinction between an act and an omission to act, with recovery allowed in the former case, but not in the latter, fails to account for the harmful consequences which may result from a negligent omission, often as serious as those produced by a negligent commission.
The majority relies principally upon various Federal cases, which, I believe, are inapposite. For example, the majority analogizes the facts in H. E. Crook Co. v. United States, 270 U.S. 4, 70 L.Ed. 438, 46 S.Ct. 184, to those in the case at bar, and concludes that in Crook the similarity of completion dates between the complaining contractor and the preliminary contractors “was not held an incident of faulty or actionable scheduling by defendant, or a breach of any duty owed the plaintiff, but notice to plaintiff at the outset that the government had no duty to make the sites available by a fixed time.” (Emphasis in original.)
Crook, however, is inapplicable to the instant appeal for the contract there included a provision that delays caused by the government would be regarded as unavoidable. Although the Supreme Court recognized this provision was probably inserted primarily for the contractor’s benefit as a ground for an extension of time, the court said it was not without bearing on what the contract had bound the government to do. Secondly, the contract in Crook showed that the buildings were in the process of construction by other contractors who might not keep up to the contract on time. These factors led the court to conclude that under tibe terms of the contract, the government did not bind itself to a fixed time for the work to end, since the day for completion was provisional.
As indicated in the majority opinion, the court in Crook conceded the contractors only remedy was an extension of time. Therefore, even if Crook were applicable to the instant appeal, it would still support reversal of the order dismissing Count I, since the relief sought by that pleading was a reasonable extension of time for completion of the contract work. .Although the majority relies upon Crook to support dismissal of both counts, even Crook would permit recovery under Count I.
More important, however, the Federal authorities, relied upon by the majority, involved claims against the United States. The dispositive holding in those cases was that the government could not be held liable for delay in making its work available to contractors unless the terms of the contract imposed such liability. United States v. Howard P. Foley Co., 329 U.S. 64, 91 L.Ed. 44, 67 S.Ct. 154.
In Illinois, as the cases referred to above demonstrate, the law is otherwise. The law in Illinois is that a contractee is under a legal duty to keep the work in such a state of forwardness as to enable the contractor to perform the contract within the time specified, unless the contract provides otherwise. Annotations generally suggest that the weight of authority in other states is in accord with the Illinois rule, not the Federal rule. Annot., 91 L.Ed. 48 (1946); Annot, 115 A.L.R. 65 (1938); Annot, 70 L.Ed. 438 (1925).
Finally, the majority holds that plaintiffs amended complaint fails to allege the performance of all conditions precedent, as required by Supreme Court Rule 133 (Ill. Rev. Stat. 1973, ch. 110A, par. 133(c)), with respect to the contractual requirement relating to requests for extensions of time. The record discloses, however, that plaintiff alleged it “requested by letter on September 6, 1972, a written extension of the completion date but that the defendant, Illinois State Toll Highway Authority has refused to extend the completion date.” I believe this statement sufficiently alleges the performance of the condition precedent as required by the contract.
For the foregoing reasons, I would reverse the order dismissing Counts I and II of the amended complaint. In other respects I would affirm the judgment.
I respectfully dissent.