Maxfield v. Simmons

JUSTICE HARRISON

delivered the opinion of the court:

Paul E. Simmons, the defendant and third-party plaintiff, appeals from an order of the circuit court of Saline County which dismissed with prejudice his amended third-party complaint against the third-party defendants Walter DeNeal, d/b/a DeNeal Building Supply, and Jesse B. Holt, Inc. (“Holt”). The trial court expressly found no just reason for delaying an appeal; hence we have jurisdiction of this appeal pursuant to Supreme Court Rule 304(a) (73 Ill. 2d R. 304(a)). The sole issue is whether the trial court properly dismissed the amended third-party complaint. We affirm.

For the purposes of determining the sufficiency of a pleading all facts properly pleaded and all reasonable inferences which can be drawn from them are accepted as true. (See Bray v. Illinois National Bank (1976), 37 Ill. App. 3d 286, 290, 345 N.E.2d 503.) The amended third-party complaint alleged that Jerry Maxfield and Paul Simmons entered into a written agreement for the building of a home. Simmons built the home and used trusses purchased from Walter DeNeal, one of the third-party defendants, and which had been manufactured by Holt, the other third-party defendant. Subsequently, Maxfield sued Simmons, alleging that the roof of the house had buckled, damaging the interior ceiling. Maxfield’s complaint, incorporated by reference in Simmons’ third-party complaint, alleged only that Simmons breached the contract and not that he committed any tortious misconduct. Simmons’ third-party complaint further asserted that in the event Simmons was liable to Maxfield, the liability would be due to “faulty and defective materials, including the trusses, which were sold by third-party defendant Walter DeNeal, 909 and designed, manufactured and sold by Jessie [sic] B. Holt, Inc. 9 9 9.” Simmons also contended that his potential liability would not be due to any fault of his own, but rather would solely be due to the fault of the third-party defendants. The third-party complaint concluded that Simmons was entitled to be indemnified by either or both third-party defendants.

The trial court ordered the amended third-party complaint stricken and dismissed with prejudice on the ground that it showed no cause of action not barred by the statute of limitations in the Uniform Commercial Code (Ill. Rev. Stat. 1979, ch. 26, par. 2 — 725). An appellate court may affirm a judgment for reasons other than those advanced by the trial court (Well v. Schoeneweis (1981), 101 Ill. App. 3d 254, 258, 427 N.E.2d 1343); hence, we need not address the limitations issue as we conclude the pleading states no cause of action against the third-party defendants.

On appeal Simmons contends that his third-party action is one for breach of an implied indemnity contract. The potential liability of Simmons to Maxfield is founded on the contract between Maxfield and Simmons to build the house. Simmons’ third-party complaint therefore seeks indemnification from DeNeal and Holt for Simmons’ potential liability stemming from his alleged breach of the Maxfield-Simmons contract. “Our research discloses no authority * “ * for the proposition that liability for breach of contract might entitle the wrongdoer to indemnity from a third party who was a stranger to the contract and had not contractually undertaken to indemnify the wrongdoer.” (Board of Education v. Joseph J. Duffy Co. (1968), 97 Ill. App. 2d 158, 162, 240 N.E.2d 5.) “As the Duffy decision indicates, a stranger to a contract between two parties cannot be compelled to indemnify one of the parties for breach of contract absent the stranger’s express agreement to so indemnify.” (Emphasis added.) (Talandis Construction Corp. v. Illinois Building Authority (1974), 23 Ill. App. 3d 929, 935, 321 N.E.2d 154.) No such express agreement was pleaded in the third-party complaint and thus no right to indemnification has been shown. Consequently, the third-party claim failed to state a cause of action and was therefore rightly dismissed.

The appellant’s position on this appeal is predicated on a misinterpretation of the law. He cites cases dealing with the liability of third-party defendants for negligence causes of action and concludes that the third-party complaint is sufficient because it alleges that DeNeal and Holt were negligent in providing him with defective trusses. This is not the relevant inquiry. The cases cited by Simmons (e.g., Badorski v. Commonwealth Edison Co. (1980), 89 Ill. App. 3d 494, 411 N.E.2d 924; Zajac v. Illinois Heating & Ventilating Co. (1980), 82 Ill. App. 3d 1148, 403 N.E.2d 674; Rome v. Commonwealth Edison Co. (1980), 81 Ill. App. 3d 776, 401 N.E.2d 1032; Reynolds v. Illinois Bell Telephone Co. (1964), 51 Ill. App. 2d 334, 201 N.E.2d 322), all involved negligence as the gravamen of the plaintiffs complaint against the defendant third-party plaintiff. The instant case, as noted above, is predicated on the plaintiff’s breach of contract action against Simmons. Although Simmons couches his third-party claim in terms of tort, this does not change the nature of Simmons’ potential liability in the suit brought by Maxfield. Hence, the cases on which Simmons relies are distinguishable, and Duffy and Talandis control.

We therefore affirm the order of the circuit court of Saline County.

Affirmed.