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Weck v. A:m Sunrise Const. Co.

JUNE 12, 1962.




Appeal from the Municipal Court of Chicago; the Hon. JOSEPH B. HERMES, Judge, presiding. Judgment affirmed.


Rehearing denied September 11, 1962.

Plaintiffs as assignees of a real estate contract filed a verified complaint in the Municipal Court of Chicago seeking reimbursement from the defendant construction company for its alleged failure to complete the construction of the residence in question in a workmanlike manner and to assume the assessment against the property for the construction of street improvements.

The court overruled defendant's motion to dismiss, the defendant filed its verified defense, and the case proceeded to trial before a jury. From the pleadings and the testimony it appeared that in the early part of March 1955 plaintiffs, their daughter, and her husband inspected premises at 2628 West 94th Place, Evergreen Park, which were for sale by the defendant. Subsequently, on March 14, 1955, plaintiffs' daughter and son-in-law, Dorothy and Rudolph Fischer, Jr., entered into a real estate sale contract with the defendant as seller. There is a conflict in the evidence as to the state of completion of the improvements at that date; Weck testified that the premises were about seventy-five per cent complete at that time, defendant's president testified that the premises were completed when the painting and decorating were finished on March 3, 1955, eleven days before the contract was entered into.

The transaction with respect to the Fischers was closed on April 11, 1955, at which time a trustee's deed dated March 1, 1955 from Pullman Trust and Savings Bank, as trustee, issued to Rudolph and Dorothy Fischer; and on April 21, 1955 a warranty deed issued from Rudolph and Dorothy Fischer to plaintiffs Peter and Maude Weck. At the closing the defendant delivered its letter to plaintiffs stating that in consideration of the payment of the balance of the purchase price upon the premises it agreed (1) to file the two deeds with the Registrar of Titles of Cook County, (2) to cause a Torrens certificate to issue in the name of plaintiffs subject to 1954 general taxes and a certain easement, and (3) to pay the 1954 general taxes.

With reference to plaintiffs' claim against defendant in the amount of $600, representing the assessment made September 21, 1959 against the property for the construction of street improvements, the trial judge indicated that defendant should not be held liable for a property assessment made after the date of closing. To support their claim, plaintiffs rely on a handwritten provision inserted in the contract at the insistence of Peter Weck: "Street Paid for according to McKeowns Subdivision Plan, Improvements and assessments Include[d] in above Purchase Price." This qualification must be read in connection with the standard itemized liens and encumbrances of the real estate sale contract, the fifth item reading "Installments for Special Assessments falling due after date of closing," and the sixth "for Improvement not yet completed at said premises." It would be inequitable to hold that the McKeowns provision bound defendant to pay for an assessment made some four and one-half years after the sale contract was signed.

Peter Weck, who had been shown specifications of the house by a salesman of the defendant corporation, testified to complaints as to the condition of the building made to defendant's superintendent beginning in July of 1955. Plaintiff testified that the building was not completed at the time of purchase, and stated that after the defendant corporation finished its construction work the building was not habitable. The Fischers moved into the house in July of 1955, but because of numerous defects they were unable to remain and spent the winter of 1955-1956 with the Wecks. After the Fischers moved into the new house, Mr. Weck testified, they found that the plumbing in the bathroom leaked; that there was water leakage in the basement and through the roof; that the plaster on the bedroom ceiling was cracked; that the kitchen cabinets were unsatisfactory; that the rear door could not be used; and that a driveway and street curbing had to be installed. On August 23, 1955 plaintiff sent a letter to defendant in which he itemized the defects. Plaintiff never signed the completion certificate submitted to him by the defendant corporation.

Robert King, in the general contracting business under the name of Pullman Construction Company, at Mr. Weck's request gave him an estimate as to the cost of repairs necessary to make the premises habitable, subsequently did the work in accordance with his estimate, and was paid in full by Mr. Weck. Mr. King testified that he first saw the property in June of 1956; he stated that he was not familiar with the condition of the building or the land on April 21, 1955, the date the transaction was closed. He testified that a waterproofing compound was applied to stop water leakage through the side walls and floor of the basement. The roof had to be repaired to prevent water leakage. As a result of the roof leakage, a bedroom ceiling cracked and caved, and had to be repaired. Mr. King sent a plumber over to stop the leak in the bathroom. Mr. King characterized the original kitchen cabinets as "defective"; they were so warped the doors would not close, and Mr. King replaced them. The rear door failed to lock properly and had to be reset and rehung. A driveway was installed along the side of the house, and street curbing was put in. Mr. King filled in a hole six feet deep that was the width of the lot and extended the length of the back yard. A contractor of sixteen years' experience, he testified that all the repairs he made were necessary to the building and the grounds at the time he made his original inspection, and that his charges in the amount of $1628.50 were reasonable.

Charles Joseph Marrin, the owner and president of A:M Sunrise Construction Company, the builder and defendant corporation, admitted receiving a letter of complaint from Peter Weck. Mr. Marrin testified as to the dates of completion of the various stages of construction — the roof was completed in October 1954; the windows were installed in November of 1954; the plastering was completed in November of 1954; the concrete floor in the basement was also installed in November of 1954; the finished wood flooring and the bathroom ceramic floor were installed in January of 1955; the wood trim and the kitchen cabinet work were likewise completed in January of 1955; the tile floor in the kitchen was installed in February of 1955. The Voral Company, which took care of the tile work and the Formica work, also did both the interior and exterior painting, and completed its work early in March 1955. Mr. Marrin testified that the painting and decorating is usually the last work to be done, and he believed that it was the last work done on the building in question. He stated that he personally inspected the building; that he did not see any warped doors in the kitchen cabinets; that there was not a sixfoot hole at the rear of the property extending the width of the lot and about twenty feet in length; that he did not see any cracks in the ceiling plaster. He testified that he made it a practice to inspect his buildings weekly until they were turned over to the purchaser, and that this building was completed in the first week of March 1955. Representatives of some of the various trades working on the building were called as witnesses, and their testimony substantially corroborated Mr. Marrin's with respect to dates of completion.

Much of the pleading, the proof, and the argument was directed to the state of completion of the building on the date of the sale contract and to the quality of the workmanship; the evidence was in sharp conflict on these issues. Thus they became questions of fact for the jury who heard and observed the witnesses and had an opportunity to assess their credibility. The jury found for the plaintiffs, and there is sufficient evidence in the record to warrant their so finding.

Defendant urges that, as a matter of law, the trial court should have rendered judgment in its favor notwithstanding the verdict or, in the alternative, should have granted a new trial, on the theory that when parties to a real estate sale contract reduce their agreement to writing, the writing becomes the whole agreement of the parties; that all prior negotiations and understandings are merged into the written agreement and become extinguished; and that there is no implied warranty as to the condition of real estate sold. Plaintiffs contend that their evidence in no way varied the terms of the contract, but rather that it proved that the house as finally constructed was not fit for habitation, and they argue that the real consideration for the contract was the purchase and sale of a residence with all appurtenances attached, and so completed as to be habitable. Briefly, the question becomes whether or not the seller should be held liable to deliver to the purchaser a house fit for habitation.

There is a comprehensive discussion of this problem by Allison Dunham in an article entitled Vendor's Obligation as to Fitness of Land for a Particular Purpose, appearing in 37 Minn L Rev 108 (1952-1953). He concluded (p 125):

"[I]f no matter of title is involved, the sale of an incomplete building seems to impose on the vendor a duty to make the premises fit for the ordinary purposes for which the building is being constructed and if the sale is from a model there is a duty to make the building sold conform to the model and to be reasonably fit for its ordinary purposes. This duty seems to survive acceptance of the deed."

In Chicago Title & Trust Co. v. Wabash-Randolph Corp., 384 Ill. 78, 51 N.E.2d 132 (1943), a controversy arose as to whether there was appurtenant to lots owned by plaintiffs a perpetual easement of ingress and egress over lots owned by defendants. It was defendants' contention that the two contracts and the two deeds made in consummation of the contracts must be, as to the question of easement, considered together; and that if there was a merger, then the absence of an easement provision in the deed would render such provision in the contract ineffective. The parties on both sides recognized the principle that distinguishes those cases where the delivery of the deed constitutes a complete fulfillment of all the ...

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