Appeal from the Circuit Court of Cook County; the Hon. EDWARD
G. SCHULTZ, Judge, presiding. Judgment reversed and cause
remanded for proceedings not inconsistent with this opinion.
MR. JUSTICE BRYANT DELIVERED THE OPINION OF THE COURT.
Rehearing denied April 22, 1966.
This appeal comes from an order entered June 26, 1964, in the Circuit Court of Cook County, Illinois, dismissing the appellant's third amended complaint for failure to state a cause of action.
The appellant, Admiral Oasis Hotel Corporation, hereafter called Admiral, purchased 59 air-conditioning units manufactured by Mueller Climatrol Co., hereafter called Mueller, but distributed and sold by the defendant Home Gas Industries, Inc., known hereinafter as Home.
Count I of the complaint alleges that when Admiral began construction of a hotel in August of 1956, one H. Schwartz, an officer and duly authorized agent and sales representative of Home, approached Irving Rootberg, the principal stockholder of Admiral, with the request that Admiral purchase its room air-conditioning units from Home. It is alleged that these air-conditioning units were manufactured by Mueller. It is further alleged "that said Schwartz did state, represent, and warrant that Mueller had commenced making a new room-air-conditioning unit and that these units were well constructed and would perform the work of cooling the rooms of said hotel as well or better than any other unit on the market; that said Schwartz also represented that said units were well constructed and durable and able to do the job well and that Mueller had just commenced manufacturing these units and was anxious to get into the room-air-conditioning market; that Rootberg, on behalf of Admiral, did purchase said units as a direct result and consequence of the aforesaid representations and warranties upon the recommendation and representations of said Schwartz, agent for Home, as above set forth; and that the same were not purchased by trade name, except as a convenient way of defining the item to be purchased."
The complaint further alleges that these units were delivered by Home on September 6, 1956, and that they did not operate properly in the following respects: (1) the units leaked water or other liquids into the rooms, (2) the units were not dependable and required constant servicing, (3) in cool weather it was necessary to remove outside louvers and block up the exterior vents so as to prevent excessive chilling of rooms by reason of leakage of cold air through the units.
The complaint further alleges an implied warranty that all of the units "would perform the work for which they were intended, namely the cooling of the rooms of the hotel. . . ." It further alleged that on or about August of 1960, four years after the units were delivered, "because it was clear that said units were incapable of ever operating properly and satisfactorily," the said units were removed and replaced with new units produced by another manufacturer.
Admiral also claims that it was damaged in that it lost large sums of rental income for the reason that said rooms could not be rented to hotel guests if not adequately air-conditioned; that the walls, carpeting and furniture therein were damaged by reason of the leakage of water and other liquids from the units; and that Admiral had to spend $13,340 for new units. Damages are sought against the defendant Home in the amount of $75,000.
The first principal point raised on behalf of the seller is that the representations made by its agent, Schwartz, merely constituted expressions of opinion and should not be construed as a warranty. As Home points out in its brief, "It is essential to a warranty that the purchaser shall have relied on the representations of the seller and it must have been the intention of the parties that the statements were to be construed as a warranty."
The allegation upon which the appellant relies is that which states that Home represented and warranted that the units were of good quality, well constructed and would perform a cooling job as well or better than any other air-conditioner on the market. Home contends that such a statement could not be construed as a warranty because it is not a positive affirmation of some fact capable of being proven or disproven and is in fact an abstraction which means one thing to one person and something else to another. It is argued, for example, that people would disagree as to how cold "cool" is. How good is "well constructed"?
This argument is without merit. The standard against which these statements is to be measured is that of ordinary commercial usage and the common understanding of people in a matter such as this. Uniform Sales Act, Ill Rev Stats 1963, c 121 1/2, § 71; Sterling-Midland Coal Co. v. Great Lakes Coal & Coke Co., 334 Ill. 281, 165 N.E. 793 (1929). It is true that men might disagree as to whether an air-conditioner should cool to 72 degrees or 68 degrees or some other specific temperature. It is clear, however, that the machine must cool to some extent. Beyond that, whether or not an air-conditioner is or is not operating adequately is a question of fact to be decided by the trier of fact. The terms used in the alleged warranty are not so vague as not to be capable of being proved.
The seller claims that Admiral knew it was buying a new, untried, unproven piece of merchandise. While it is true that the manufacturer was just starting the production of these units, it is also true that there is an allegation that the seller's agent warranted them. We believe that the complaint reasonably sets out facts, which, if proven, would establish an express as well as the ordinary implied warranty that the air-conditioners would be of merchantable quality. Uniform Sales Act, Ill Rev Stats 1955, c 121 1/2, § 15(2).
Home also claims that an action founded upon express and implied warranties is inconsistent with the continuous use of the units for an unreasonable length of time. Home points out that Admiral used the units for four cooling seasons before taking them out. In a letter written by Admiral to Home dated October 1957, the appellant complains of the manner in which the machines operated. The letter points out that Admiral owned three other buildings which made use of room air-conditioners and that in the preceding three years an aggregate of about five or six service calls had been required for all these other units, as opposed to constant service calls required for the units manufactured by Mueller. The letter also points out that the Mueller units had to be taken from the premises for repair, while the units in the other buildings were repaired on the scene.
This letter was not incorporated in the complaint, but is before this court on a motion to amend the complaint so as to include the allegation that Home was notified that the machines did not operate properly. It is argued by Home that this letter was a part of the earlier complaints, and that appellant should not be permitted to bring ...