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Rozny v. Marnul

MAY 2, 1967.

RAYMOND A. ROZNY, JR., ET AL., PLAINTIFFS-APPELLEES,

v.

JOHN MARNUL, D/B/A JENS K. DOE SURVEY SERVICE, DEFENDANT-APPELLANT.



Appeal from the Third Municipal District of the Circuit Court of Cook County; the Hon. HARRY R. PORTER, Judge, presiding. Judgment reversed.

PRESIDING JUSTICE LYONS DELIVERED THE OPINION OF THE COURT.

ON REHEARING

This is an appeal from a judgment in favor of plaintiffs, after a jury verdict, in the amount of $13,350. Defendant is a surveyor, who furnished a builder with a survey and plat. The plat was found to be inaccurate. Plaintiffs later acquired the property covered by the plat.

Plaintiffs' original complaint based their action on theories of both negligence and contract. Before the case went to the jury, the negligence count was stricken. The case proceeded to trial based on a "guarantee" contained in the plat.

On August 27, 1953, defendant made a lot or construction survey for S & S Builders, for the vacant property located at 605 Oakton Street, Park Ridge, Illinois. On August 21, 1955, defendant issued a written location plat of survey for the same property, this time locating the building lines on the survey. Defendant did not know the person for whom he did the survey but believed it was for a builder, one Harold Nash. Defendant admitted the survey was inaccurate. As a result of the error, plaintiffs' driveway was constructed so as to encroach on the next lot by about two feet.

The City of Park Ridge issued a building permit to Nash on June 27, 1955. The Park Ridge Federal Savings and Loan Association gave him a loan commitment of $14,000, when Nash presented the Association with the Torrens title on the property and the inaccurate survey of August 21, 1955. This is the only survey the Association had in connection with the property. The Association indicated they would not make the mortgage if the survey did not correctly locate the building on the property. Defendant testified that he discovered the August 21, 1955, survey was inaccurate and reissued a corrected survey on August 25, 1955, which was sent to the person who originally ordered it. The Savings and Loan Association never received the so-called corrected survey and was never informed of its existence. There is no testimony showing that Nash ordered the property to be resurveyed or that he received a copy of the corrected survey.

Plaintiffs first saw the property in January, 1956, when the builder, Nash, showed it to them. Plaintiffs agreed to purchase the property and went to the Park Ridge Federal Savings and Loan Association. Mr. Brinker of the Association advised them there was an existing construction loan of $14,000 on the Oakton Street property, which was made by Nash and that plaintiffs could finance the purchase by assuming the Nash mortgage. All the documents concerning the property were reviewed by plaintiffs with Mr. Brinker, at the closing, including the incorrect survey, which was in the files of the Association. The closing took place in February, 1956.

There was a driveway on the premises extending to the back of the house. In September, 1956, plaintiffs extended the driveway and built a garage, based on a stake in the back and a mark on the sidewalk. Plaintiffs testified that the first time their attention was called to any possible discrepancies in the location of the driveway, garage and lot, was about two years before the trial.

The survey of August 21, 1955, was signed by defendant and had his Illinois surveyor's seal affixed thereto, (he was a licensed registered surveyor) and the survey plat contained a written representation that "the plat above is a correct representation of said survey and location," a further statement that "this plat of survey carries our absolute guarantee for accuracy" and was signed by defendant in his capacity as a surveyor.

At the trial, Olaf Nilsen, a house moving and shoring contractor, testified that the estimated cost of moving the house and garage and rehabilitating both so they would be properly located on the lot, would be $13,030. He further testified that the cost of labor had increased 15% per year since 1956.

The jury returned a verdict against defendant in the sum of $14,000, which was later reduced by a voluntary remittitur to $13,350. A judgment in that amount was entered. This appeal is from that judgment.

Defendant's appeal is based on the theory that

(1) plaintiffs' cause of action is barred by the five-year statute of limitations as the ...


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