## Facts

- Symons Corporation, a designer/manufacturer of concrete-forming equipment, contracted with Bulley & Andrews, Inc., a general contractor, to build an office and factory addition involving extensive architectural concrete work.
- The contract specifications required that forming equipment “will be furnished by [Symons] to the contractor from [Symons’] standard catalog items,” with the catalog attached.
- Bulley prepared its bid expecting to use Symons’ standard “looped” tie rods, which Bulley had used for many years.
- When Bulley requested forming equipment at the site, Symons supplied “threaded” tie rods and a different rustication strip than Bulley expected; the threaded rods were shown in Symons’ catalog.
- Bulley’s field superintendent accepted and used the supplied equipment and did not notify Bulley’s office that different equipment had been furnished.
- The project took longer than Bulley anticipated, but Bulley did not notify Symons during performance that the substituted equipment was causing extra costs or difficulties.
- About nine months after substantially all forming work was completed, Bulley attributed additional expenses to the substituted equipment and sought compensation as “extras,” also alleging fraudulent misrepresentation.
- The trial court awarded Bulley recovery for some extras and declared a mechanic’s lien, but denied recovery for the claimed equipment-related extras and dismissed the fraud count.

## Issues

1. Whether Bulley could recover additional compensation as contract “extras” based on Symons’ provision of threaded tie rods and non-expected rustication strips, including whether the work constituted an owner-ordered change outside the contract.
2. Whether evidence of the parties’ course of performance was admissible notwithstanding the parol evidence rule to interpret or show modification of the written agreement.
3. Whether Bulley stated and proved a claim for fraudulent misrepresentation regarding the forming equipment furnished.
4. Whether the trial court erred in granting Bulley a mechanic’s lien and judgment for those extras it allowed (cross-appeal).

## Decision

- The appellate court affirmed the judgment in all respects.
- Bulley was not entitled to additional payment for costs allegedly caused by using threaded tie rods and the substituted rustication strips.
- The dismissal of Bulley’s fraudulent-misrepresentation count was affirmed.
- On Symons’ cross-appeal, the mechanic’s lien and the allowed extras judgment in Bulley’s favor were affirmed.

## Legal Principles

- Evidence of the parties’ course of performance may be admitted to interpret ambiguous contract terms or to show practical modification; the parol evidence rule does not automatically bar such evidence.
- Where incorporated contract documents (such as an attached catalog) encompass the materials or methods supplied, performance using those items is generally treated as within the contract rather than compensable “extras.”
- A party’s acceptance and continued use of substituted performance without timely objection or notice weighs strongly against a later claim that the substitution was outside the contract or required additional compensation.
- Fraud requires proof of a false statement of material fact, knowledge or belief of falsity, intent to induce reliance, reasonable reliance, and resulting damages; acceptance and prolonged use without complaint may defeat reasonable reliance.

## Conclusion

The court held that Bulley could not recharacterize increased costs as “extras” after accepting and using Symons’ catalog-listed forming equipment without timely protest, and it reaffirmed that course-of-performance evidence may be considered despite the parol evidence rule while affirming dismissal of the contractor’s fraud claim and upholding the mechanic’s lien for other allowed extras.


Bulley & Andrews, Inc. v. Symons Corp., 25 Ill. App. 3d 696, 323 N.E.2d 806 (Ill. App. Ct. 1975)