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FOURTH DIVISION
DECEMBER 26, 2002

1-02-0244

JUSTICE HARTMAN delivered the opinion of the court:

Plaintiff, Installco Incorporated (Installco) filed a twocount complaint against defendant, Whiting Corporation (Whiting). Count I sought contract damages for non payment of commissions onfour construction projects, an accounting, and exemplary damages,costs and attorney's fees pursuant to the Sales Representative Act(the Act) (820 ILCS 120/1 et seq. (West 2000)). Count II soughtquantum meruit compensation for a value engineering change proposal(VECP), which was done in connection with the Bonneville Damproject. This court previously reversed the circuit court's grantof summary judgment in favor of Whiting and remanded for furtherproceedings. See Installco Inc. v. Whiting Corp., 305 Ill. App. 3d986, 713 N.E.2d 719 (1999) (Installco I). On remand, following abench trial, the circuit court entered judgment in favor of Whitingand against Installco on the quantum meruit claim. The courtfurther granted judgment in favor of Whiting and against Installcounder count I on Installco's claim for an accounting, exemplarydamages, freight charges, and commissions. Judgment was entered infavor of Installco, however, on Installco's claim for attorney'sfees and costs under count I.

On appeal, Installco contends that the circuit court erred in:(1) granting judgment in favor of Whiting on Installco's claim forquantum meruit; (2) finding that Installco's waiver of the $31,500commission on the Midwest Foundation Dam 18 project (MidwestFoundation project) was enforceable; (3) finding that Installco wasnot entitled to commission on freight costs under the 1988agreement; (4) denying Installco's request for exemplary damagesunder the Act; and (5) denying Installco's request for a jurytrial. Installco also contends that it was not compensatedadequately for its attorneys's fees under the Act. Whiting fileda cross-appeal from the court's award of attorney's fees in favorof Installco contending that the court erred in rejecting Whiting'saffirmative defense that Installco be estopped from contending thatit was acting in the capacity of a sales representative forWhiting. Prior to 1988, Installco was a government subcontractor,supplying machinery packages for moveable bridges, locks, and dams. John B. Ehret was the principal shareholder and sole officer ofInstallco. Ehret is also a licensed attorney and has representedInstallco throughout its dealings with Whiting and in thislitigation. Whiting engages in the manufacturing of heavyindustrial equipment. On June 1, 1988, Installco and Whitingentered into a written contract (the 1988 agreement) which providedthat Whiting would utilize Installco as a consultant on all bridge,lock, and dam projects on an exclusive basis. Installco's"[c]onsulting services [would] consist of *** assisting Whiting ***in the preparation of quotations, selling, manufacturing, and thepurchase of O.S.M.⁽¹⁾ as deemed necessary by the product groupmanager."

In exchange for Installco's consulting services, Whitingagreed to pay Installco a fee of 5% of the selling price paid onorders received during the term of the 1988 agreement, payments tobe made as set forth in Schedule A, attached to the 1988 agreement. Schedule A provided that Installco would be paid 10% of its feethirty days after Whiting confirmed an order and the next 40% afterWhiting collected at least 50% of the selling price. The final 50%was to be paid after Whiting received 100% of the selling price. The 1988 agreement by its terms provided that it superseded anyprevious written or verbal agreements between the parties.

In 1990, Installco requested that Whiting modify the 1988payment schedule to provide that the final 50% of the Installco feewould be paid in the same proportion as Whiting was paid by thecustomer. In an internal Whiting memo dated October 30, 1990 (the1990 memo), Whiting agreed to the accelerated payments on ordersthen in existence in exchange for Installco waiving its $31,500commission on the Midwest Foundation project. Charles Bailey, aWhiting employee, testified that the 1990 memo applied only toprojects that fell under Schedule A of the 1988 agreement where 50%had not yet been paid by the customer so Whiting was holding backcompensation to Installco. Jeffrey L. Kahn, president of Whiting,testified that the 1990 memo applied to old jobs where 50% of thecommission was being held.

The parties entered into a new contract, effective December11, 1991 (the 1991 agreement). The 1991 agreement provided that it"supersedes any previous written or verbal agreements between theparties." The 1991 agreement added the word "engineering" to thelist of consulting services Installco would provide Whiting. The1991 agreement also added a definition of "selling price" whichexcluded all freight, established a new fee structure as set forthin a new Schedule A attached thereto, and changed the timing forpayment of the final 50% of Installco's fee as set forth inSchedule B attached thereto, which adopted the accelerated paymentscontemplated by the 1990 memo.

Both the 1988 agreement and the 1991 agreement provided fortermination by either party on 60 days written notice. By letterdated February 5, 1994, Installco terminated the 1991 agreement anddemanded payment of commissions, including $2,640 for the Bay CityBridge project; $9,446 for the Bulk Head Lifter project; $10,577for the New York City Bridges project; $9,126 for the MississippiRiver Dam 16 project; and $22,417 for the VECP. After receipt ofthe termination letter, Whiting prepared and sent to Installco apayments analysis dated February 23, 1994, which substantiallyagreed with Installco's claims except as to commissions on freightand the VECP claim. Whiting made several conditional tenders whichwere rejected. Whiting made an unconditional tender of allcommissions due Installco on January 10, 1996, in the amount of$30,154.74. Installco accepted that payment in August 1997.

On August 21, 2000, Installco filed its first-amendedcomplaint adding allegations in count I that Installco was entitledto $10,000 in commissions on freight charges and $31,500 incommissions on the Midwest Foundation project.

The parties agree that all commissions have been paid in fullexcept for Installco's claims for: (1) commissions on freight; (2)commissions on the Midwest Foundation project; and (3) $22,417 forthe VECP.

Installco's original complaint included a jury demand on thelegal issues. Upon remand following this court's decision inInstallco I, Installco moved unsuccessfully for a substitution ofjudge and "reassignment to another Trial Judge with a JURY." Installco also unsuccessfully moved to transfer this cause to thelaw division for a jury trial.

Following the bench trial, the circuit court issued amemorandum order and opinion, granting judgment in favor of Whitingand against Installco on the quantum meruit claim. The courtfurther granted judgment in favor of Whiting and against Installcounder count I on Installco's claim for an accounting, exemplarydamages, freight charges, and commissions. The court grantedjudgment in favor of Installco, however, on Installco's claim forattorney's fees and costs under count I. At a separate hearing onattorney's fees, the court awarded Installco $8,400 in attorney'sfees and $274 in costs. Whiting moved unsuccessfully for a findingthat Installco be estopped from seeking any relief under the Act. Whiting also moved unsuccessfully for reconsideration.

In a bench trial, the circuit court must weigh the evidenceand make findings of fact. A reviewing court will not disturb thecourt's findings unless they are against the manifest weight of theevidence. Eychaner v. Gross, No. 91496 (Ill. Oct 3, 2002)(Eychaner). The court's conclusions of law are reviewed de novo. Eychaner, slip op. at 13.

Installco first contends that the circuit court erred ingranting judgment in favor of Whiting on its claim for quantummeruit. Specifically, Installco argues that the court erred infinding that the VECP services were rendered under the 1988agreement.

To recover under a quantum meruit theory, the plaintiff mustprove that: (1) he performed a service to benefit the defendant,(2) he did not perform this service gratuitously, (3) defendantaccepted this service, and (4) no contract existed to prescribepayment for this service. Canel and Hale, Ltd. v. Tobin, 304 Ill.App. 3d 906, 710 N.E.2d 861 (1999). "Where services are renderedunder an express contract, there can be no quasi-contractualrecovery." Barry Mogul and Associates, Inc. v. TerrestrisDevelopment Co., 267 Ill. App. 3d 742, 643 N.E.2d 245 (1994) (BarryMogul). No quasi-contractual claim can arise when a contractexists between the parties concerning the same subject matter onwhich the quasi-contractual claim rests. Barry Mogul, 267 Ill.App. 3d at 750.

In the present case, the VECP services were rendered under anexpress contract. The 1988 agreement provided that Installco wouldact as a consultant and such consulting services would includeassisting Whiting in "the preparation of quotations, selling,manufacturing, and the purchase of O.S.M." Kahn testified thatfrom the beginning of Installco's formal relationship with Whiting,Ehret represented his engineering expertise and how it could helpWhiting. The record reveals that Installco did not engage indirect selling activities with respect to the Bulkhead Lifterproject and the Picone Bridge project; but instead providedengineering related services to assist in the applicationengineering, preparation of drawings, review of technicalliterature, pricing, and preparation of the bid packages on thosetwo projects. Installco was paid a full commission on bothprojects. Henry Lee, a Whiting employee, testified that 95% ofInstallco's activities at Whiting were non-sales. Lee also statedthat it was customary for Ehret to provide technical informationand assistance to customers. The record includes several examplesof such correspondence. All services rendered by Installco on theBonneville Dam project, including the VECP, were rendered under the1988 agreement.

The circuit court did not err in granting judgment in favor ofWhiting on Installco's claim for quantum meruit.

Installco next contends that the circuit court erred infinding that its waiver of the $31,500 commission on the Midwest

Foundation project was enforceable. Installco admitted during oralargument that it agreed to waive the $31,500 commission in exchangefor accelerated payments on other commissions. Installco arguesthat there was no evidence that Whiting honored its part of theagreement to make accelerated payments and because of this allegedbreach, the waiver is not enforceable. Installco provides noauthority in support of this argument.

Installco points to the testimony of several Whiting employeesin support of its contention that Whiting never implemented the1990 memo. Catherine Collins, treasurer of Whiting, stated thatshe did not remember receiving the 1990 memo, but as per herstandard practice she would have forwarded it to Angela Stack forprocessing and handling. Stack testified that she did not recallseeing the 1990 memo and that Collins would have handled it. AlanBurke testified that he did not know if the 1990 memo had beenimplemented. Bailey, the author of the memo, testified that he didnot have any conversations with Collins regarding implementation ofthe memo and did not know for sure whether it was implemented. Kahn testified that he was not sure whether the 1990 memo was everimplemented, but "it looks like it was based on the memo." Other than the $2,650⁽²⁾ commission on the Bay City Bridgeproject (Bay City Bridge commission), Installco failed todemonstrate by record evidence what, if any, accelerated commissionpayments due under the 1990 memo were not paid on a timely basis. With regard to the Bay City Bridge commission, the circuitcourt correctly found that there was no failure of consideration ormaterial breach on the part of Whiting. The Bay City Bridgecommission was a negligible percentage of the $350,373 in totalcommissions paid to Installco. Whiting admitted that the Bay CityBridge commission "slipped through the cracks" because the projectmistakenly had been assigned two requisition numbers. Whitingacknowledged the oversight in its February 23, 1994 response toInstallco's termination letter and tender was made.

The circuit court did not err in finding that Installco'swaiver of the $31,500 commission on the Midwest Foundation projectwas enforceable.

Installco next contends that the circuit court erred infinding that it was not entitled to commissions on freight costsunder the 1988 agreement.

The principal purpose in construing a contract is to ascertainand give effect to the parties' intent at the time they enteredinto the contract. Shields Pork Plus, Inc. v. Swiss Valley AgService, 329 Ill. App. 3d 305, 767 N.E.2d 945 (2002) (ShieldsPork). Where a dispute exists between the parties as to themeaning of a contract provision, the threshold issue is whether thecontract is ambiguous. Hillenbrand v. Meyer Medical Group, S.C.,288 Ill. App. 3d 871, 682 N.E.2d 101 (1997) (Hillenbrand). Thisissue presents a question of law to be decided by the circuit courtfrom an examination of the instrument as a whole before anyextrinsic evidence is considered. Hillenbrand, 288 Ill. App. 3d at876. A reviewing court will independently determine the matterunrestrained by the circuit court's judgment, in the manner of a denovo review. Shields Pork, 329 Ill. App. 3d at 311. A contract isnot ambiguous simply because the parties disagree as to itsmeaning. Hillenbrand, 288 Ill. App. 3d at 876. "A contract isambiguous where the language employed is susceptible to more thanone reasonable meaning or obscure in meaning through indefinitenessof expression." Countryman v. Industrial Comm'n, 292 Ill. App. 3d738, 741, 686 N.E.2d 61 (1997).

The term "selling price" in the 1988 agreement is ambiguous,as it is not clear whether the term includes freight.

Installco further argues that if the term "selling price" wasambiguous, the circuit court's finding that the parties did notintend the term to include freight was against the manifest weightof the evidence. If contract language is ambiguous, extrinsicevidence is admissible to determine the parties' intent andinterpretation of the language is a question of fact. Bradley RealEstate Trust v. Dolan Associates, Ltd., 266 Ill. App. 3d 709, 640N.E.2d 9 (1994) (Bradley). The circuit court's determination ofthe intent of the parties will not be disturbed on review unless itis contrary to the manifest weight of the evidence. Bradley, 266Ill. App. 3d at 712.

Lee testified that freight was not included in the sellingprice for purposes of determining Installco's compensation. Leeidentified a commission calculation sheet he prepared in 1990,which indicated a subtraction from the selling price of $20,000 forfreight. The sheet was not signed by Ehret; but included anotation that Ehret had seen it and approved it. Finally, Leetestified that by late 1988 or early 1989 when the firstcommissions were paid, Installco was aware of Whiting's positionthat "selling price" was minus freight.

The circuit court's determination that freight costs were notincluded in Installco's commissions under the 1988 agreement wasnot against the manifest weight of the evidence.

Installco next contends that the circuit court erred indenying its request for exemplary damages under the Act.

Section 3 of the Act provides in pertinent part that "[a]principal who fails to comply with the provisions of Section 2concerning timely payment or with any contractual provisionconcerning timely payment of commissions due upon the terminationof the contract with the sales representative, shall be liable ina civil action for exemplary damages in an amount which does notexceed 3 times the amount of the commissions owed to the salesrepresentative." 820 ILCS 120/3 (West 2000). No automatic awardof exemplary damages is granted for every violation of the Act. Maher and Associates, Inc. v. Quality Cabinets, 267 Ill. App. 3d69, 640 N.E.2d 1000 (1994) (Maher); Zavell & Associates, Inc. v.CCA Industries, Inc., 257 Ill. App. 3d 319, 628 N.E.2d 1050 (1993)(Zavell). The court's decision as to whether to grant exemplarydamages, or not, will not be disturbed absent an abuse ofdiscretion. Zavell, 257 Ill. App. 3d at 322.

In Maher, the court noted that the purpose of exemplarydamages is to punish the offender and to deter that party andothers from committing similar acts of wrongdoing in the future. Such damages should not be awarded absent a finding of "culpabilitythat exceeds bad faith." Maher, 267 Ill. App. 3d at 80. The courtheld that on remand, the plaintiff would be entitled to exemplarydamages only if it could demonstrate that the defendant's behaviorin withholding the commissions beyond the statutory period "wasoutrageous and the moral equivalent of criminal conduct." Maher,267 Ill. App. 3d at 81. See also Zavell, 257 Ill. App. 3d at 322("The standard for awarding such damages is willful and wantonconduct or vexatious refusal to pay.")

The record reveals that although some commission payments werenot timely made, Whiting's conduct was not outrageous or the moralequivalent of criminal conduct. Whiting issued a timely andcomprehensive written response to Installco's termination letterwhich indicated what commissions presently were due and whatamounts would be due in the future. Whiting made severalconditional and unconditional tenders of amounts due, whichInstallco rejected. Kahn testified that when Whiting sent itsresponse to Installco's termination letter, it was willing to payInstallco the amounts that were then owed and any future amountsthat became due under Schedules A and B of the 1991 agreement. Kahn met with Ehret in September 1994 to discuss Installco's issuesregarding payment of commissions. This conduct cannot becharacterized as wilful and wanton or vexatious.

The circuit court did not abuse its discretion in denyingInstallco's request for exemplary damages.

Installco next contends that the circuit court erred indenying its request for a jury trial. Specifically, Installcoargues that a proper jury demand was filed with the originalcomplaint and that this is a contract dispute involving legalissues.

Installco's contention ignores the equitable nature of therelief sought under both counts of the first-amended complaint,which caused the issues to be decided in chancery. Both countssought an accounting, an equitable remedy. See Martin v. HeinoldCommodities, Inc., 163 Ill. 2d 33, 643 N.E.2d 734 (1994) (Martin)(holding that actions to impose a constructive trust and for anaccounting are equitable claims). Count II requested relief underthe equitable theories of quantum meruit and unjust enrichment. See Owen Wagener & Co. v. U.S. Bank, 297 Ill. App. 3d 1045, 697N.E.2d 902 (1998). Also, Installco moved for substitution of judgeand reassignment to another trial judge with a jury and to transferthis cause to the law division for a jury trial. In its motion totransfer, Installco argued that "there are questions of aconstructive trust."

Further, as to count I, there is no right to a jury trialunder the Sales Representative Act (the Act) (820 ILCS 120/1 etseq. (West 2000)). The right to a jury trial does not attach toevery action at law. Martin, 163 Ill. 2d at 73. Theconstitutional right to trial by jury does not extend to actionsunknown at common law. Martin, 163 Ill. 2d at 74. In Martin, thecourt found that there was no right to a jury trial under theConsumer Fraud and Deceptive Business Practices Act (the ConsumerFraud Act) (815 ILCS 505/1 et seq. (West 2000)). Noting thedifferences between the elements of a claim for common law fraudand the elements for recovery under the Consumer Fraud Act, thecourt found that the Consumer Fraud Act was a statutory enactmentwhich created a new cause of action unknown at common law. Thecourt also noted that the Consumer Fraud Act did not expresslyprovide for jury trials.

In the present case, Installco received and accepted itscontract damages prior to trial and was seeking to impose onlyattorneys fees, expenses and punitive damages for breach ofcontract under the Act. The parties agree that all commissionswere paid in full prior to trial except for commissions on freightand commissions on the Midwest Foundation Dam 18 project. Fees,expenses, and punitive damages are not recoverable at common lawfor breach of contract. See Cirrincione v. Johnson, 184 Ill. 2d109, 703 N.E.2d 67 (1998) (noting that generally, punitive damagesare not recoverable for breach of contract); Johnson v. HumanRights Comm'n, 173 Ill. App. 3d 564, 527 N.E.2d 883 (1988) (absenta statute or contract provision specifically providing forassessment of attorney's fees and costs, each party is responsiblefor its own costs of litigation). The Act does not expresslyprovide for jury trials. Analogous to the Consumer Fraud Act, itis a statutory enactment which created a new cause of actionunknown at common law. Consequently, there is no right to a jurytrial under the Act.⁽³⁾

Finally, a party may, by its conduct, waive its demand for ajury trial. Bevins v. Comet Casualty Co., 71 Ill. App. 3d 758, 390N.E.2d 500 (1979); LaSalle National Bank v. International Ltd., 129Ill. App. 2d 381, 398, 263 N.E.2d 506 (1970) ("It has long been thelaw that the right to a trial by jury may be waived by a partyproceeding to trial before the court without objection."); Williamsv. Frank, 85 Ill. App. 2d 85, 229 N.E.2d 408 (1967) (holding thatplaintiff waived his jury demand by proceeding to trial before thecourt without a jury). Installco's motions for substitution ofjudge and reassignment to another trial judge with a jury and totransfer this cause to the law division for a jury trial weredenied eleven months and eight months prior to trial. Installcodid not again raise the issue of a jury trial until its openingbrief in this appeal. Ehret admitted during oral argument that hedid not object at the outset of the bench trial to proceedingwithout a jury. Installco cannot sit by silently, allowing a fullbench trial to proceed and then, unhappy with the result, argue onappeal that the matter should have been heard by a jury. Installco, by its conduct, waived its jury demand.

The circuit court did not err by denying Installco a jurytrial.

Lastly, Installco contends that it was not compensatedadequately for its attorney's fees under the Act. Specifically,Installco argues that "if this court agrees wholly or in part with[Installco], [Installco] is entitled to all its legal fees." Inlight of the disposition of Installco's other issues, this issue iswithout merit.

CROSS-APPEAL

On cross-appeal Whiting contends that the judgment awardingInstallco attorney's fees under the Act should be vacated. Whitingdoes not dispute the adequacy of the record to support the court'sfinding that Installco acted as a sales representative; but arguesthat Installco should have been estopped from contending that itwas acting in the capacity of a sales representative for Whiting. Whiting first suggests that estoppel should be applied basedon the "uncontradicted evidence" that Ehret provided legal adviceto Whiting which is inconsistent with the positions advanced byInstallco in this lawsuit. Specifically, Ehret advised Whiting ina 1989 memorandum that he considered the relationship betweenInstallco and Whiting to be a joint venture rather than acontingent fee situation. Although this opinion might becharacterized as a legal opinion, there is no evidence that Ehret was retained by Whiting to render legal advice.

Whiting further argues that Installco should be estopped fromasserting its status under the Act because of a judicial admissionmade by Ehret in his deposition. A judicial admission is adeliberate, clear, unequivocal statement of a party about aconcrete fact within that party's peculiar knowledge. Hansen v.Ruby Construction Co., 155 Ill. App. 3d 475, 508 N.E.2d 301 (1987)(Hansen). Judicial admissions may be made during discoverydepositions. Van's Material Co., Inc. v. Department of Revenue,131 Ill. 2d 196, 545 N.E.2d 695 (1989).

In his discovery deposition, Ehret defined a "manufacturer'srep" as someone who "usually has a contract to sell certainproducts, but those products are ordinarily manufactured in aremote location at the manufacturer's factory and shipped from themanufacturer to the customer direct. And the rep is paid acommission on shipments." Whiting argues that this definition isconsistent with the definition of "sales representative" in theAct.⁽⁴⁾ When asked if he ever functioned as a "manufacturer's rep"for Whiting through Installco, Ehret stated "[n]o, not to myknowledge, not that I can recall." At trial, Ehret testified thathe did function as a "manufacturer's rep" for Whiting.

In Hansen, the court noted that when analyzing whethertestimony was equivocal, the court must consider the wholedeposition, as the "'determination depends upon an evaluation ofall of his testimony, and not just a part of it.'" Hansen, 155Ill. App. 3d at 481, quoting McCormick v. Haan, 20 Ill. 2d 75, 78,169 N.E.2d 239 (1960). The record on appeal does not contain afull transcript of Ehret's deposition. Moreover, the fact thatEhret was not a "manufacturer's rep" for Whiting was not somethingpeculiarly within the knowledge of Ehret.

Finally, Whiting argues that the uncontradicted evidenceestablished that sales activities were only a small part (5%) ofInstallco's activities at Whiting. According to Whiting, at thetime Installco terminated its relationship with Whiting, Installcoalready had been compensated adequately on a percentage basis forits sales activities. Whiting cites no authority in support ofthis contention.

The circuit court did not err in denying Whiting judgment onits affirmative defense of estoppel.

Accordingly, for the reasons set forth above, the judgment ofthe circuit court of Cook County is affirmed.

Affirmed.

GREIMAN and KARNEZIS, JJ., concur.

1. Outside Materials.

2. Whiting contends that the commission was $2,450, thedifference reflecting freight costs.

3. With regard to jury trials under the Act, Installco citesthree cases. Twin-City Inn, Inc. v. Hahne Enterprises, Inc., 37Ill. 2d 133, 225 N.E.2d 630 (1967), involved the Forcible Entry andDetainer Act, which unlike the Act, expressly provided for jurytrials. In Dawson v. W. & H. Voortman, Ltd., 864 F. Supp. 77 (N.D.Ill. 1994), the court found that the Act does not impose astatutory penalty for purposes of determining the proper statute oflimitations. The court did not address whether there was a rightto a jury trial under the Act or not. Federal Deposit InsuranceCorp. v. W.R. Grace & Co., 877 F.2d 614 (7th Cir. 1989) did notinvolve the Act.

4. The Act defines "sales representative" as "a person whocontracts with a principal to solicit orders and who iscompensated, in whole or in part, by commission, but shall notinclude one who places orders or purchases for his own account forresale or one who qualifies as an employee of the principalpursuant to the Illinois Wage Payment and Collection Act." 820ILCS 120/1(4) (West 2000).