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Franzen v. Dunbar Builders Corp.

MARCH 30, 1971.




APPEAL from the Circuit Court of Cook County; the Hon. RICHARD A. HAREWOOD, Judge, presiding.


Defendant, Dunbar Builders Corporation, appeals from a judgment entered against it in an action for breach of contract in the amount of $36,942.45. Plaintiffs in the action were 51 purchasers of condominium units in a condominium apartment building known as Mulford House which was constructed by defendant. On appeal defendant contends:

1. The trial court erred in admitting plaintiffs' set of plans.

2. The trial court erred in denying admission of defendant's set of plans.

3. The trial court improperly awarded damages for sliding door installation.

4. The trial court erred in refusing to permit the architect to testify as to costs of roof repair.

Plaintiffs' Second Amended Complaint consisted of two counts. Plaintiffs in Count I alleged inter alia: that plaintiffs, individually and severally, had contracted with defendant for the construction of a multi-unit apartment structure in a workmanlike manner and in accordance with designated plans and specifications; that defendant failed to complete material parts of the building and used materials and workmanship not in compliance with the designated plans and specifications; and that defendant has thereby breached its contract with plaintiffs and caused plaintiffs to incur substantial damages.

Plaintiffs in Count II realleged much of the substance of Count I and further alleged inter alia: that pursuant to the contract defendant retained exclusive ownership and control of the premises until formation of the plaintiffs' Board of Managers in October, 1964; that during such period of ownership and control, defendant occupied a fiduciary relationship with respect to plaintiffs; and that defendant breached its fiduciary duty by acting in its own self-interest and by permitting inferior materials and workmanship to be applied. Defendant further alleged that said breach caused plaintiffs to incur substantial damage.

Plaintiffs filed a Bill of Particulars which specified the item of defendant's alleged breach. The major items were that defendant substituted inferior doors and windows, eliminated a 25 ton air conditioner to cool the commonways, failed to insulate the water lines, failed to balance the ventilation system, failed properly to install a fire hose connection and check valve, improperly installed the roof, and improperly constructed the balcony decks.

Defendant denied substantially all material allegations of plaintiffs' complaint.

After hearing all the evidence, the trial court, sitting without jury, held in favor of plaintiffs on Count I. The judgment order specified 15 items of defendant's breach and assessed separate damages for each totaling $36,942.45. The trial court further held in favor of defendant on Count II. Defendant appeals from the judgment entered against it on Count I of plaintiffs' complaint.

Defendant contends that the trial court erred in admitting Plaintiffs' Exhibit 54 in evidence and also erred in denying admission to Defendant's Exhibit 5.

The contracts entered into by the individual plaintiffs with defendant provided:

"Seller agrees that it will improve the above real estate with the apartment building and apartment unit substantially in accord with the plans and specifications known as "DUNBAR'S CONDOMINIUM PLAN" NO. (blank), by (blank), architect, which have been examined by Buyer and are on file in Seller's office."

The first blank on all but nine of the 51 contracts provided, "6302." Of the other nine, one provided, "6301," one was left blank, and seven provided, "Mulford House." The second blank on all provided "William G. Karson." The earliest of the 51 contracts was dated June 11, 1963, and the latest was dated August 8, 1964. Both Plaintiffs' Exhibit 54 and Defendant's Exhibit 5 were labeled "Dunbar Job # 6302."

On August 16, 1968, during pre-trial discovery plaintiffs caused a supplemental interrogatory to be served upon defendant which stated:

"List and describe, or otherwise identify, each and every set of plans and/or specifications prepared by or for Defendant for the construction and erection of the premises in question at 250 Ridge Avenue, Evanston, Illinois (Mulford House), the subject matter of this lawsuit, which are or may be designated, in whole or in part, as Plan 6302 or Dunbar Job Number 6302; and state the exact present location, if known, of each set of plans and/or specifications and the names and addresses of all persons having such documents in their possession or under their control."

Defendant answered the supplemental interrogatory stating:

"(a) Original tracings in possession of Albert R. Belrose, 5625 North Milwaukee Avenue, Chicago, Illinois; (b) one set of drawings in possession of plaintiffs; (c) Sheets A-1, M-1, M-2, M-3, M-4, E-1, E-2 and E-3 in possession of First Federal Savings of Berwyn; (d) permit set of plans in possession of Evanston, Illinois Building Department."

On May 12, 1969, plaintiffs caused a notice to produce, pursuant to Supreme Court Rule 237 (b), Ill. Rev. Stat. 1969, ch. 110A, par. 237 (b), to be served upon defendant, which in its pertinent parts provided:

"Plaintiffs will also require production at the commencement of trial of the following documents:

(2) All copies of plans and specifications known as Plan Number 6302 referred to in the Purchase Contract between defendant and plaintiff, including but not limited to, the following:

(a) The permit set;

(b) The bid set;

(c) The construction contract set;

(d) The contract set;

(e) All changes and amendments to any of the ...

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