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Wielander v. Henich

OCTOBER 28, 1965.

ELMER WIELANDER, PLAINTIFF-APPELLANT,

v.

N. HENICH, D/B/A A. ABALL ROOFING AND HARDWARE, DEFENDANT-APPELLEE.



Appeal from the Municipal Court of Chicago, First Municipal District of the Circuit Court of Cook County; the Hon. JOSEPH B. HERMES, Judge, presiding. Affirmed.

MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.

Plaintiff, Elmer Wielander, owner of premises at 1415 South Harlem Avenue, Berwyn, Illinois, brought suit against the defendant, N. Henich, d/b/a A. Aball Roofing & Hardware Co., upon a five-year guarantee written in an estimate submitted by the defendant to the "Owner of Property" at 1417 So. Harlem Avenue. The estimate was for roof repair work to be done by the defendant, and specified the type of work, but did not mention upon which particular property the work was to be done. The estimate was not signed by anyone, but was written on the stationery of the defendant. Further, the year when the estimate was given cannot be ascertained from the instrument since it was filled out as "November 15, 195 — ."

Plaintiff, in his amended statement of claim, claimed that this estimate constituted an agreement between himself and the defendant, entered into in the year 1955, and that the work was to be done on the premises owned by the plaintiff at 1415 S. Harlem Avenue, Berwyn, Illinois. Plaintiff alleged that the work was done by the defendant in an improper manner, that the roof leaked, and that water entered his premises damaging the interior of the building in the amount of $1,000. Plaintiff did not allege when the leak occurred, either before the work was done, after it was done and within the five-year guarantee period, or after the five-year guarantee period expired.

The suit was commenced by the plaintiff on November 4, 1963. The defendant filed a motion to strike the claim on the grounds that the action was barred by the five-year statute of limitations pertaining to oral contracts. The trial court sustained this motion, dismissed the cause, and gave judgment for the defendant. The plaintiff appeals from that order.

The relevant portions of the estimate, which plaintiff contends constitutes the agreement between himself and the defendant, are as follows:

"A. Aball Roofing & Hardware Co. 3925 W. Roosevelt Road

Chicago 24, Ill. November 15, 195 __________________

TO Owner of Property _________________ 1417 So. Harlem Ave. ____________________ Estimet (sic)"

Then follows a description of the work, and the instrument ends with:

"and gurantted (sic) for 5 years."

The contract was not signed by either of the parties.

The only question presented here is whether plaintiff's action is barred by the five-year statute of limitations pertaining to oral contracts. That statute provides: ". . . actions on unwritten contracts, expressed or implied, . . . shall be commenced within five years next after the cause of action accrued." Ill. Rev Stats 1963, chap 83, par 16.

Though the exact year when this estimate was given cannot be ascertained from the face of the instrument itself, plaintiff alleges that it was given in 1955. He contends that since this is a written contract the ten year statute of limitations pertaining to written contracts applies, (Ill. Rev Stats 1963, c 83, par 17) and therefore the suit was commenced within the proper time limit.

We do not agree with the plaintiff. Several reasons lead us to conclude that since parol testimony must be used to make the agreement complete, it is at best an oral contract and the suit is ...


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