Appeal from the Circuit Court of Cook County; the Hon. ABRAHAM
W. BRUSSELL, Judge, presiding. Reversed and remanded.
MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT.
Defendants' appeal from a judgment entered on a verdict assessing damages in the sum of $14,000 in favor of the plaintiffs and against defendants arising out of the claim of the plaintiffs that defendants were negligent in the services rendered by them as architects in connection with the construction of a basement recreation room on plaintiffs' premises.
Defendants contend principally that the court erred in (1) ruling on the admissibility of evidence, (2) refusing defendants' motions for mistrial, directed verdict and judgment notwithstanding the verdict and (3) striking from defendants' answer the affirmative defense of the Statute of Limitations.
The original complaint was filed October 26, 1959, naming as one of the defendants Michaelson, Rabig & Ramp, a partnership; *fn1 an amended complaint was filed on May 24, 1960. After the suggestion on February 15, 1965, of the death of C.S. Michaelson and the dissolution of the partnership, a second amended complaint was filed on September 17, 1965, naming Karl Rabig and Albert Ramp as additional defendants and summons were ordered issued against them; on November 10, 1965, a third amended complaint was filed naming the partnership, Le Roy Priore, Administrator of the Estate of Christian S. Michaelson, Mildred Rader, Executor of the Estate of Karl K. Rabig, and Albert H. Ramp who was the sole surviving partner; on June 31, 1966, a fourth amended complaint was filed.
The fourth amended complaint alleged substantially that plaintiffs were the owners of certain premises located in Riverside, Illinois; that in the spring of 1957 Michaelson, Rabig & Ramp was a partnership engaged in the business of architecture and engineering; that plaintiffs employed them to prepare plans for the construction of a recreation room; that defendants agreed to draw plans, select and supervise contractors; that defendants selected McKirnan to perform certain heating work; that defendants breached their agreement (a) by failing to investigate the financial condition of McKirnan, (b) by selecting an incompetent heating contractor, (c) by representing to plaintiffs that McKirnan was qualified to do the heating work and that he was financially stable when in fact defendants knew or should have known that McKirnan was without the necessary skills and was on the verge of insolvency, (d) by failing to adequately supervise the work, (e) by failing to inspect or by negligently inspecting McKirnan's work and by their negligence in several other respects; that plaintiffs were damaged by the acts and omissions of defendants in that plaintiffs' premises were and continue to be without adequate heat, the building and its contents have been damaged and large amounts of money have been expended in temporary repairs and further expenditures will be necessary to put the premises in the condition that it would have been had defendants performed their agreements.
Defendants denied the allegations of negligence and breach of duty and averred affirmatively that the Statute of Limitations barred their action which plaintiffs denied in their reply.
The evidence disclosed that the architectural and engineering firm of Michaelson, Rabig & Ramp was employed by plaintiffs to prepare and draw plans for a recreation room and appurtenances in the basement of their residence in Riverside, Illinois. The firm prepared blueprints and specifications and solicited bids. The total cost of the contracts set was $38,000. One of the items installed was a heating system under the concrete floor of the recreation room. The contract for the heating was let by plaintiffs to defendant James E. McKirnan *fn2 on April 26, 1957, and he undertook for a price of $2,079 to install heating according to specifications which did not call for radiant heating. *fn3 The written contract between plaintiff John Morse and McKirnan was approved by defendant Ramp and signed by Morse. The work was inspected by defendants and was completed in the latter part of 1957. Late in 1958 or early in 1959 there was a leak in the floor which was repaired. John Morse testified:
The heating system in the recreation room was bad right in the beginning and we couldn't keep heat and in 1964 it gave out. In 1959, 1958, 1959 to 1964 it was leaking and we couldn't maintain heat in our home. I could hear the sump pumps running and the situation of the hot water in the sump pumps in the well continued. We had hot spots all over the floor.
Plaintiffs concede that the contract with McKirnan did not specify a radiant heating system but urge that the contract was subsequently changed by an oral agreement between plaintiff John Morse and defendants through one of the partners, Christian S. Michaelson. Plaintiffs sought to establish this oral modification by the testimony of John Morse that he had conversations with the deceased partner Michaelson to this effect.
Defendants objected to the admission into evidence of these conversations as violative of section 4 of the Evidence Act (Ill Rev Stats 1965, c 51, § 4). *fn4 In Mansur v. Eugene Luhr Co., 84 Ill. App.2d 403, 408, 228 N.E.2d 265, the court held that conversations between a deceased officer of the corporation and plaintiff employee regarding the terms of an oral salary contract were not admissible under section 4 of the Evidence Act. See Hill v. A.J. Canfield Co., 157 F.2d 849 (CCA 7th Circuit). Plaintiffs contend, however, that evidence of a transaction is admissible citing Lueth v. Goodknecht, 345 Ill. 197, 177 N.E. 690 (lost receipt showing payment of a note) and Helbig v. Citizens' Ins. Co., 234 Ill. 251, 84 N.E. 897 (payment of an insurance premium). Neither of those cases dealt with conversations and are therefore inapplicable. The objection to the testimony of John Morse as to conversations with the deceased partner Michaelson out of the presence of any surviving partner should have been sustained.
Defendants next urge that prejudicial error occurred when plaintiffs were permitted to testify concerning allegedly unsatisfactory work by McKirnan's father on occasions prior to 1957. The objection thereto should have been sustained on the ground of irrelevancy.
Further, the following question was asked of plaintiff John Morse by his attorney: "[I]sn't it a fact that at about the time that this job was done by McKirnan that he went into bankruptcy?" The court sustained the objection "at this time."
It was later admitted by plaintiffs' counsel in conference outside the presence of the jury that McKirnan did not go into bankruptcy until more than two years after the job was completed and no evidence as to bankruptcy was ever proffered. In his opening statement plaintiffs' counsel told the jury:
And the evidence will show that at the time, or shortly after this occurrence took place, the heating ...