Plaintiffs, Action Construction & Restoration, Inc., and JamesPickens, sued defendant, West Bend Mutual Insurance Company, forbreach of oral contract, common-law fraud, equitable estoppel, andpromissory estoppel. The breach of oral contract and common-lawfraud counts were tried before a jury, and the jury found inAction's favor on both counts. On appeal, West Bend argues that (1)the jury's verdict on the contract and fraud counts was notsupported by the evidence, (2) the trial court erred in denyingWest Bend's motion for a new trial based on newly discoveredevidence, and (3) the trial court erred in denying West Bend'srequest for remittitur. In its cross-appeal, Action argues thatthe trial court erred in (1) denying Action's request for punitivedamages, attorney fees, and statutory interest and (2) reducing thejury's verdict from $479,732.39 to $450,615. Because we concludethat the jury's verdict on the oral contract count is legallyinconsistent with its verdict on the common-law fraud count, wereverse and remand for a new trial.

On March 29, 1997, a fire destroyed most of the factory ownedby Burmac Metal Finishing Co. Burmac's factory was insured by WestBend. An adjuster for West Bend hired Action to secure thebuilding and perform some preliminary board-up work. According toAction's president, James Pickens, the West Bend adjuster thendirectly hired Action to perform whatever work was necessary to"get Burmac back in operation." In the end, Action performedrestoration work totaling more than $450,000.

West Bend vehemently denies directly hiring Action foranything other than the preliminary board-up work. According toWest Bend, Action was hired by Burmac, which expected to pay Actionwith the proceeds of its West Bend insurance coverage. As it turnsout, West Bend denied Burmac's fire loss claim and refused to payAction directly for any of the work performed.

Action then sued West Bend for (1) breach of oral contract,(2) common-law fraud, (3) equitable estoppel, and (4) promissoryestoppel. The jury found in Action's favor on the contract andfraud counts and entered a $479,732.39 verdict. After enteringjudgment on the jury's verdict (which the trial court reduced to$450,615), the trial court also found in Action's favor on bothestoppel counts and entered an $18,897.28 judgment. This timelyappeal followed.

To prove breach of contract, Action had to prove (1) theexistence of a valid and enforceable contract, (2) substantialperformance by Action, (3) a breach by West Bend, and (4) resultingdamages. See Klem v. Mann, 279 Ill. App. 3d 735, 740-41 (1996). For an oral contract to be valid and enforceable, its terms must bedefinite and consistent. Trittipo v. O'Brien, 204 Ill. App. 3d662, 672 (1990). When it appears that the language used or theterms proposed are understood differently by the parties, there isno meeting of the minds and no contract exists. Trittipo, 204 Ill.App. 3d at 672.

Here, the jury was instructed not only on breach of contractbut also on West Bend's affirmative defenses. One of West Bend'saffirmative defenses was that "no oral contract was created becauseas a condition precedent to an enforceable contract Burmac had tohave insurance coverage." The jury not only returned a verdict inplaintiff's favor but also answered the following specialinterrogatory in the negative:

"Did Plaintiff know or should it have known thatDefendant's obligation to pay Plaintiff for restoration andconstruction services was contingent upon an obligation on thepart of Defendant to pay insurance benefits under its policywith Burmac?"

Thus, by finding in Action's favor on the breach of contract claim,the jury necessarily found that Action and West Bend had a meetingof the minds and that West Bend's obligation to pay was in no waycontingent upon the availability of Burmac's insurance coverage.

On the common-law fraud count, the jury was instructed thatAction had the burden of proving, among other things, that "thedefendant, through its agent, made "[a] false statement of fact andknowingly concealed or withheld from the plaintiff material factswith the intent to deceive the plaintiff and induce the plaintiffto perform certain restoration and construction work." The jurywas further instructed:

"Plaintiff *** claims that the defendant, through its agent,knowingly concealed or withheld from [it] the following facts:

(a) That defendant's willingness to pay plaintiff for therestoration and construction work was contingent upon theterms of the defendant's insurance agreement with Burmac; and

(b) That there was an insurance coverage problem thatmight limit or preclude a claim for insurance benefits by Burmac."

The jury not only returned a verdict in Action's favor on thecommon-law fraud count but also answered the following specialinterrogatory in the affirmative: "Did any employees or agents ofdefendant intentionally conceal any material facts?" Thus, byfinding in Action's favor on the common-law fraud count, the jurynecessarily found that West Bend's willingness to pay wascontingent upon valid insurance coverage for Burmac and that WestBend intentionally withheld this fact when it hired Action toperform the restoration and construction work.

The inconsistency is now apparent: The jury found both that(1) Action and West Bend had a meeting of the minds and that WestBend's obligation to pay was in no way contingent upon theavailability of Burmac's insurance coverage (breach of contract);and (2) West Bend's willingness to pay was contingent upon validinsurance coverage for Burmac and that West Bend intentionallywithheld this fact when it hired Action to perform the restorationand construction work (common-law fraud). These two findings arelegally inconsistent. The two parties could not have had a meetingof the minds if West Bend fraudulently concealed a material fact.Conversely, if the two parties truly reached a meeting of the mindsand payment was never contingent upon coverage, West Bend'sconcealment of the coverage dispute could not be fraudulent.

The difficulty is compounded by the fact that the evidencealternatively supports both verdicts. There is certainly evidencefrom which the jury could have concluded that West Bend hiredAction directly and that West Bend's promise to pay was nevercontingent upon coverage (breach of contract). Likewise, there isevidence from which the jury could have concluded that West Bendled Action to believe that payment was not contingent uponcoverage, all the while knowing that it would pay Action only ifcoverage was available (common-law fraud). Unfortunately, neitherlaw nor logic permits the evidence to support both verdictssimultaneously.

This case is remarkably similar to Wottowa Insurance Agency,Inc. v. Bock, 104 Ill. 2d 311 (1984). In Wottowa, the plaintiffsued the defendants for both breach of guaranty and fraud. In thebreach of guaranty count, the plaintiff alleged that the defendantspersonally guaranteed certain corporate obligations and thenrefused to honor that personal guarantee when the corporationfolded. In the fraud count, the plaintiffs alleged that thedefendants signed the personal guaranty with no intention ofhonoring it, thereby inducing the plaintiff to extend credit to thecorporation that it otherwise would not have extended. The juryreturned a verdict in the defendants' favor on the breach ofguaranty count and in the plaintiff's favor on the fraud count.Wottowa, 104 Ill. 2d at 312-13.

The supreme court faced three issues: (1) whether the guarantyin question was a personal or corporate obligation; (2) whether theverdict in the defendants' favor on the breach of guaranty countcould stand; and (3) whether the trial court should have directeda verdict or entered a judgment notwithstanding the verdict in thedefendants' favor on the fraud count. Before reaching theseissues, however, the supreme court observed that, by ruling in thedefendants' favor on the breach of guaranty count, the jurynecessarily found that the guaranty in question was a corporate,rather than a personal, obligation. Wottowa, 104 Ill. 2d at 316.The court then continued:

"It is logical to conclude, therefore, that once the jurydetermined by its verdict that the guaranty agreement was nota personal obligation, but rather a corporate obligation, theallegation of fraud under count II had to fail. However,under [the fraud count], the jury found that the defendants'fraudulently induced the plaintiff into further extensions ofcredits by executing the attached Guarantee Agreement withoutany intention of personally guaranteeing the obligations' ofthe two corporations. Such findings are irreconcilablyinconsistent." Wottowa, 104 Ill. 2d at 316.

Having sua sponte found the jury's verdict legally inconsistent,the supreme court set aside the jury verdict and ordered a newtrial. Wottowa, 104 Ill. 2d at 316.

Like the supreme court in Wottowa, we are faced in this casewith a jury verdict that is legally inconsistent. We thereforehave no choice but to set aside that verdict and order a new trial. See Wottowa, 104 Ill. 2d at 316.

Accordingly, the judgment of the circuit court of WinnebagoCounty is reversed, and this cause is remanded for a new trial.

Reversed and remanded.

RAPP and GROMETER, JJ., concur.