A.E.I. Music Network v. Business Computers ( 2002 )


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  • In the
    United States Court of Appeals
    For the Seventh Circuit
    No. 01-1650
    A.E.I. Music Network, Inc.,
    Plaintiff-Appellant,
    v.
    Business Computers, Inc., et al.,
    Defendants-Appellees.
    Appeal from the United States District Court
    for the Northern District of Illinois, Eastern Division.
    No. 98 CV 6097--George M. Marovich, Judge.
    Argued November 7, 2001--Decided May 22, 2002
    Before Flaum, Chief Judge, and Posner and
    Kanne, Circuit Judges.
    Posner, Circuit Judge. This appeal by
    A.E.I. Music Network, Inc., a
    subcontractor, from the dismissal of its
    diversity suit against the Chicago Board
    of Education (the other defendants having
    dropped out of the case) presents
    questions of Illinois contract and
    construction law. The Board had hired
    Business Computers, Inc. (BCI) to install
    an audio-visual system in a high school,
    and BCI had subcontracted a part of the
    job to A.E.I. A.E.I. did the work called
    for in the subcontract but was not paid
    by BCI, which is broke. The Illinois Bond
    Act requires a public entity such as the
    Chicago Board of Education to require its
    contractors to post bonds to assure the
    payment of any money owed by the
    contractors to their subcontractors. 30
    ILCS 550/0.01 et seq.; MQ Construction
    Co. v. Intercargo Ins. Co., 
    742 N.E.2d 820
    , 825 (Ill. App. 2000); Shaw
    Industries, Inc. v. Community College
    Dist. No. 515, 
    741 N.E.2d 642
    , 645, 647
    (Ill. App. 2000); Aluma Systems, Inc. v.
    Frederick Quinn Corp., 
    564 N.E.2d 1280
    ,
    1297 (Ill. App. 1990). The Board, in
    violation of the Act, failed to require
    BCI to post a bond; no bond was posted;
    and as a result A.E.I. could not turn to
    a surety when it was stiffed by BCI. Out
    $159,000, it brought this suit, charging
    that the statutory requirement of a bond
    was an implied-by-law term of the
    contract between the Board and BCI that
    it can enforce as a third-party
    beneficiary, and also seeking to impress
    a mechanic’s lien, 770 ILCS 60/23; R.W.
    Dunteman Co. v. C/G Enterprises, Inc.,
    
    692 N.E.2d 306
    , 313 (Ill. 1998); MQ
    Construction Co. v. Intercargo Ins. Co.,
    supra, 
    742 N.E.2d at 825
    , on any funds
    that the Board has set aside to pay BCI
    on the contract. The district judge
    dismissed the breach of contract claim as
    barred by the 180-day statute of
    limitations in the Bond Act and dismissed
    the mechanic’s lien claim as barred by an
    admission by A.E.I. that the Board had
    paid BCI all that was owing it before
    A.E.I. filed the notice of lien.
    The applicability of the 180-day statute
    of limitations to a suit by a
    subcontractor complaining about a public
    agency’s having failed to require the
    contractor to post a bond has divided
    Illinois’s intermediate appellate court.
    Shaw Industries, Inc. v. Community
    College Dist. No. 515, 
    supra,
     
    741 N.E.2d at 648
    , holds that the 180-day
    limitation, though found in the Bond Act
    rather than in the common law of
    contract, is applicable to such a suit
    because the suit however captioned is
    necessarily a suit to enforce the Act.
    
    Id. at 649
    . East Peoria Community High
    School Dist. No. 309 v. Grand Stage
    Lighting Co., 
    601 N.E.2d 972
    , 975 (Ill.
    App. 1992), implies that the 180-day
    period is inapplicable, because the court
    described the subcontractor’s suit
    against the agency as a third-party-
    beneficiary suit for breach of contract
    rather than as a suit under the Bond Act.
    We think this is clearly right and that
    the Supreme Court of Illinois would so
    hold if presented with the issue.
    The requirement of posting a bond is
    found in section 1 of the Bond Act, 30
    ILCS 550/1. The 180-day statute of
    limitations is found in section 2. 
    Id.,
    550/2. That statute of limitations is
    applicable, however, by the very terms of
    section 2, only to "a claim for labor,
    and material[,] as aforesaid"--and the
    claim to which "aforesaid" refers,
    further up in the section, is "the right
    to sue on such bond," that is, the bond
    required by section 1. Section 2 couldn’t
    be clearer: "every person furnishing
    material or performing labor, either as
    an individual or as a sub-contractor for
    any contractor, with the State, or a
    political subdivision thereof where bond
    or letter of credit shall be executed as
    provided in this Act, shall have the
    right to sue on such bond or letter of
    credit in the name of the State." 30 ILCS
    550/2 (emphasis added).
    In short, the 180-day statute of
    limitations is applicable only to a suit
    on the bond. A.E.I.’s suit against the
    Board of Education is not a suit on the
    bond. There is no bond, and so the
    statute is inapplicable. Cf. Arvanis v.
    Noslo Engineering Consultants, Inc., 
    739 F.2d 1287
    , 1290 (7th Cir. 1984) (per
    curiam). It is doubly inapplicable,
    because section 2 requires suits under it
    to be brought in the name of the public
    entity that let the contract, so that if
    A.E.I. had to sue the Board under the
    Bond Act to obtain a remedy for the
    Board’s violation of the Act, it would be
    suing the Board in the name of the Board.
    The suit would be styled Chicago Board of
    Education ex rel. A.E.I. Music Network,
    Inc. v. Chicago Board of Education.
    Absurd.
    The Board concedes that violations of
    section 1 of the Bond Act were not
    intended to be remediless. But it rightly
    insists that the remedy cannot be a suit
    on a nonexistent bond. Nor is there any
    indication of a statutory remedy except
    under the mechanic’s lien statute, and
    the remedy under that statute is
    unavailable if the public entity that
    should have required a bond for the
    protection of subcontractors has already
    paid the contractor, at least if the
    subcontractor failed, as A.E.I. did, to
    notify the public entity before it paid
    the contractor. See 770 ILCS 60/23(b);
    Walker Process Equipment v. Advance
    Mechanical Systems, Inc., 
    668 N.E.2d 132
    ,
    134 (Ill. App. 1996); Board of Library
    Trustees v. Cinco Construction, Inc., 
    658 N.E.2d 473
    , 477, 480-81 (Ill. App. 1995).
    The natural remedy in such a case is a
    suit for breach of contract by the
    subcontractor against the public entity.
    The requirement of posting a bond found
    in section 1 of the Bond Act is read into
    every construction contract of a public
    entity, Shaw Industries, Inc. v.
    Community College Dist. No. 515, 
    supra,
    741 N.E.2d at 645
    ; East Peoria Community
    High School Dist. No. 309 v. Grand Stage
    Lighting Co., supra, 
    601 N.E.2d at 975
    ,
    precisely to give the subcontractor a
    remedy; and thus it became a term of the
    contract between the Chicago Board of
    Education and BCI. Because the term
    isintended for the benefit of the prime
    contractor’s subcontractors, the doctrine
    of third-party beneficiaries entitled
    A.E.I. to sue to enforce it in a suit for
    breach of contract. And as a suit for
    breach of a construction contract,
    A.E.I.’s suit against the Board was
    governed by a 4-year, not the 180-day,
    statute of limitations. 735 ILCS sec.
    5/13-214(a); Litchfield Community Unit
    School Dist. No. 12 v. Speciality Waste
    Services, Inc., 
    757 N.E.2d 641
    , 643-44
    (Ill. App. 2001); Blinderman Construction
    Co. v. Metropolitan Water Reclamation
    Dist. of Greater Chicago, 
    757 N.E.2d 931
    ,
    934 (Ill. App. 2001). So the suit was not
    time-barred.
    Against this conclusion the Board argues
    that A.E.I. was merely an "incidental"
    and not a "direct" beneficiary of the
    Board’s contract with BCI. Third parties,
    that is, persons who are not parties to a
    contract, are permitted to enforce the
    contract if and only if the parties made
    clear in the contract an intention that
    they be permitted to do so. XL Disposal
    Corp. v. John Sexton Contractors Co., 
    659 N.E.2d 1312
    , 1316 (Ill. 1995); A.J.
    Maggio Co. v. Willis, 
    738 N.E.2d 592
    , 599
    (Ill. App. 2000); Swavely v. Freeway Ford
    Truck Sales, Inc., 
    700 N.E.2d 181
    , 185
    (Ill. App. 1998); Sufrin v. Hosier, 
    128 F.3d 594
    , 598 (7th Cir. 1997) (Illinois
    law). When that condition is fulfilled,
    permitting third-party-beneficiary suits
    is consistent with freedom of contract,
    and also reduces transaction costs by
    conferring rights (though of course not
    liabilities) on persons without requiring
    the persons to become involved in the
    contractual negotiations. Others may
    benefit if the contract is performed--
    that is common enough-- but they cannot
    sue to enforce it just by virtue of
    benefiting from it. That would take
    contractual enforcement right out of the
    hands of the parties. Those other
    beneficiaries, who have no rights, are
    called "incidental" beneficiaries, the
    "direct" ones being those who are
    permitted to enforce the contract because
    the contract authorized them to do so.
    See, e.g., Altevogt v. Brinkoetter, 
    421 N.E.2d 182
    , 187-88 (Ill. 1981); Nikolic
    v. Seidenberg, 
    610 N.E.2d 177
    , 180 (Ill.
    App. 1993); Ball Corp. v. Bohlin Bldg.
    Corp., 
    543 N.E.2d 106
    , 107 (Ill. App.
    1989); Golden v. Barenborg, 
    53 F.3d 866
    ,
    870 (7th Cir. 1995) (Illinois law);
    Hunter v. Old Ben Coal Co., 
    844 F.2d 428
    ,
    432 (7th Cir. 1988) (ditto); Vidimos,
    Inc. v. Laser Lab Ltd., 
    99 F.3d 217
    , 220
    (7th Cir. 1996).
    In a case such as this, in which the
    legislature interpolates a contractual
    term that the parties are not free to
    vary, the relevant intentions are no
    longer those of the parties but those of
    the legislature. The Illinois legislature
    wants construction contracts made by
    public entities to protect the
    subcontractors. It must have realized
    that the only persons who would have a
    financial interest in enforcing a term
    forced on the contracting parties for the
    protection of the subcontractors would
    be--the subcontractors. So the carrying
    out of the purposes of the contract, one
    purpose being that of the legislature to
    protect subcontractors, requires that the
    subcontractors be able to enforce the
    contract. Nothing more is required to
    make them "direct" third-party
    beneficiaries, entitled to sue.
    The fact that A.E.I. was not named in
    the contract is thus irrelevant. E.g.,
    Altevogt v. Brinkoetter, 
    supra,
     
    421 N.E.2d at 187
    ; LaGrange Memorial Hospital
    v. St. Paul Ins. Co., 
    740 N.E.2d 21
    , 27-
    28 (Ill. App. 2000); Hunter v. Old Ben
    Coal Co., supra, 
    844 F.2d at 432
    (Illinois law). It was not named simply
    because the relevant term is a product of
    legislation rather than of contractual
    negotiation and so designates a class
    rather than named members of the class--
    all subcontractors, not named
    subcontractors, which would be a very
    questionable form of legislation. The
    class indisputably includes A.E.I.
    Might there be some basis for subjecting
    the implied provision of the contract
    requiring the posting of a bond to the
    180-day statute of limitations in the
    Bond Act, when the rest of the contract
    is subject to a 4-year statute of
    limitations? None is suggested, and we
    cannot think of any ourselves. The reason
    for the short statute of limitations in
    the Bond Act may be that the public
    entity which let the contract and
    required the contractor to post a bond
    has an interest in minimizing the cost of
    the bond (which is likely to be passed on
    to the public entity in the form of a
    higher contract price) by protecting
    sureties against late claims. That
    interest falls away when there is no bond
    and so no surety in the picture. Or the
    reason for the short statute of
    limitations may be to enable the prime
    contractor to get paid sooner, since
    until the bond expires the public agency
    may be reluctant to pay him lest the
    subcontractors seek a remedy against the
    agency. That interest also is not engaged
    when there is no bond.
    At the oral argument of the appeal the
    Board’s lawyer surprised us by arguing
    that A.E.I.’s suit is barred by the
    principle that contracts implied in fact
    cannot be enforced against public
    entities. The argument was waived by not
    being made in the Board’s brief, but is
    in any event without merit because the
    contract between the Board and BCI was
    not one implied in fact; it was an
    express contract with an implied term. A
    contract implied in fact is not an
    express contract that may have, as most
    contracts do, implied terms, such as the
    duty of good faith, which is read into
    every contract governed by Illinois law,
    e.g., J & B Steel Contractors, Inc. v. C.
    Iber & Sons, Inc., 
    642 N.E.2d 1215
    , 1222
    (Ill. 1994); Martindell v. Lake Shore
    National Bank, 
    154 N.E.2d 683
    , 690 (Ill.
    1958). Instead, "an implied-in-fact
    contract is a true contract, containing
    all necessary elements of a binding
    agreement; it differs from other
    contracts only in that it has not been
    committed to writing or stated orally in
    express terms, but rather is inferred
    from the conduct of the parties in the
    milieu in which they dealt." Overseas
    Development Disc Corp. v. Sangamo
    Construction Co., 
    840 F.2d 1319
    , 1330
    (7th Cir. 1988) (Illinois law). Suppose a
    person walks into a store and takes a
    newspaper that is for sale there,
    intending to pay for it. The
    circumstances would create a contract
    implied in fact. See People v. Dummer,
    
    113 N.E. 934
    , 935 (Ill. 1916);
    Restatement (Second) of Contracts sec. 4,
    comment a, illustration 2 (1979). Were
    there no basis for inferring an intention
    to pay, there would be no contract,
    though the store owner would have a
    remedy in restitution, also though
    confusingly called in this context
    "quasi-contract" or "contract implied in
    law." See, e.g., In re De Laurentiis
    Entertainment Group Inc., 
    963 F.2d 1269
    ,
    1272 (9th Cir. 1992); Bloomgarden v.
    Coyer, 
    479 F.2d 201
    , 210 (D.C. Cir.
    1973).
    The reluctance to enforce contracts
    implied in fact against public agencies,
    like the parallel reluctance to apply
    notions of estoppel against such
    agencies, Cities Service Oil Co. v. City
    of Des Plaines, 
    171 N.E.2d 605
    , 607 (Ill.
    1961); Monat v. County of Cook, 
    750 N.E.2d 260
    , 270 (Ill. App. 2001), is
    motivated by concern with, and is limited
    to, situations in which the application
    of the doctrine might permit a public
    employee to bind his employer contrary to
    a statute or regulation governing public
    contracts. See, e.g., Stone v. City of
    Arcola, 
    536 N.E.2d 1329
    , 1339-40 (Ill.
    App. 1989); South Suburban Safeway Lines,
    Inc. v. Regional Transportation
    Authority, 
    519 N.E.2d 1005
    , 1008-09 (Ill.
    App. 1988). That is not what happened
    here.
    So A.E.I.’s contract claim was
    incorrectly rejected on statute of
    limitations grounds and we turn now to
    its mechanics-lien claim. A lien is a
    method of attaching, in effect freezing,
    some designated property or fund, and so
    if there is no property or fund for the
    lien to seize hold of, there can’t be a
    lien. Hence the requirement that we
    mentioned at the outset that notice of a
    lien be filed while the person against
    whom it is filed still has the property
    or fund in his possession. See also
    People ex rel. Anderson v. Village of
    Bradley, 
    11 N.E.2d 415
    , 418 (Ill. 1937);
    Wilbur Waggoner Equipment Rental &
    Excavating Co. v. Johnson, 
    342 N.E.2d 266
    , 269 (Ill. App. 1975). The district
    court read A.E.I.’s complaint to admit
    that when it filed its lien against the
    Board the Board had already paid BCI in
    full. Well, the complaint says that, all
    right, but then goes on to contradict
    itself by stating that "upon information
    and belief, AEI believes that at the time
    of service of its Subcontractor’s Claims
    for Lien there may have been monies,
    bonds or warrants due or to become due to
    BCI from [the Board]." But in its briefs
    in this court A.E.I. does not dispute the
    Board’s assertion that the money had
    indeed been paid in full, and so we shall
    assume, which nixes the mechanics’ lien
    claim. A.E.I. did not assert a mechanics’
    lien against the audio-visual system
    itself, which does of course remain in
    the Board’s possession; we need not
    consider whether it could have done so.
    The judgment is affirmed in part,
    reversed in part, and remanded for
    further proceedings consistent with this
    opinion.
    

Document Info

Docket Number: 01-1650

Judges: Per Curiam

Filed Date: 5/22/2002

Precedential Status: Precedential

Modified Date: 9/24/2015

Authorities (32)

Ball Corp. v. Bohlin Building Corp. , 187 Ill. App. 3d 175 ( 1989 )

Board of Library Trustees of Westmont v. Cinco Construction,... , 213 Ill. Dec. 3 ( 1995 )

Walker Process Equipment v. Advance Mechanical System, Inc. , 282 Ill. App. 3d 452 ( 1996 )

Shaw Industries, Inc. v. Community College District No. 515 , 318 Ill. App. 3d 661 ( 2000 )

East Peoria Community High School District No. 309 v. Grand ... , 235 Ill. App. 3d 756 ( 1992 )

Litchfield Community Unit School District No. 12 v. ... , 325 Ill. App. 3d 164 ( 2001 )

LaGrange Memorial Hosp. v. St. Paul Ins. Co. , 317 Ill. App. 3d 863 ( 2000 )

Monat v. County of Cook , 322 Ill. App. 3d 499 ( 2001 )

Cities Service Oil Co. v. City of Des Plaines , 21 Ill. 2d 157 ( 1961 )

MQ Construction Co. v. Intercargo Insurance , 252 Ill. Dec. 282 ( 2000 )

Blinderman Construction Co. v. Metropolitan Water ... , 325 Ill. App. 3d 362 ( 2001 )

Barry W. Sufrin v. Gerald D. Hosier, Cross-Appellee , 128 F.3d 594 ( 1997 )

People Ex Rel. Anderson v. Villiage of Bradley , 367 Ill. 301 ( 1937 )

john-v-arvanis-dba-industrial-contractors-v-noslo-engineering , 739 F.2d 1287 ( 1984 )

Henry S. Bloomgarden v. Charles B. Coyer , 479 F.2d 201 ( 1973 )

Bruce P. Golden v. David Barenborg and Salomon Brothers, ... , 53 F.3d 866 ( 1995 )

In Re De Laurentiis Entertainment Group Inc., a Delaware ... , 963 F.2d 1269 ( 1992 )

Nikolic v. Seidenberg , 242 Ill. App. 3d 96 ( 1993 )

Altevogt v. Brinkoetter , 85 Ill. 2d 44 ( 1981 )

Stone v. City of Arcola , 181 Ill. App. 3d 513 ( 1989 )

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