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Marth v. Illinois Weather-seal

OPINION FILED JUNE 17, 1977.

MARIE MARTH ET AL., PLAINTIFFS-COUNTERDEFENDANTS-APPELLEES,

v.

ILLINOIS WEATHER-SEAL, INC., DEFENDANT-COUNTERPLAINTIFF-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ANTHONY J. MENTONE, Judge, presiding.

MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Rehearing denied July 28, 1977.

Illinois Weather-Seal, Inc. (Weather-Seal), defendant and counter-plaintiff, appeals from a judgment entered on its counterclaim for the balance due on a contract, which judgment allowed a set off in favor of Marie Marth and Ann Marth, plaintiffs and counterdefendants. The sole issue on appeal is whether the evidence supports the judgment of the trial court. We affirm. The pertinent facts follow.

On October 31, 1973, the Marths entered into a contract with Weather-Seal for the purchase and installation of new windows for their home. The contract called for removal of the existing windows and installation of two picture windows, eight sliding windows and four double-hung windows. The windows to be installed were referred to as "Nu-Sash" windows. The contract stated that the Marths had paid $100 and were to pay $4646.82 upon completion of the work. After the windows were installed the Marths paid Weather-Seal $1500 on the contract, leaving a balance of $3146.82

The Marths filed the instant complaint against Weather-Seal alleging that due to negligent installation, water leaked through the windows and caused damage to the interior of their home. They further alleged that water accumulates in the sills because the windows are not level, and that Weather-Seal has not responded to their numerous calls. The Marths prayed judgment for $4000 to correct the alleged improper installation and for property damage caused thereby.

Weather-Seal answered the complaint, denying its allegations, and further counterclaimed against the Marths, alleging a balance due on the contract of $3146.82. The Marths denied the allegations of the counterclaim.

After a trial without jury, judgment was entered "on the counterclaim in the amount of $896.82, after a set off of $2250 having been allowed on plaintiffs' complaint." Weather-Seal's motion to vacate the judgment and for new trial was denied. Weather-Seal then brought this appeal.

The following testimony was adduced at trial.

John Moran was called to testify on behalf of the Marths. The parties stipulated that Moran is an architect, that he examined the premises in question, and that he would testify "as to what should be done to correct the condition of the windows that were installed by the defendant * * *." Moran testified as follows. Upon inspection of the premises he found the installation of the sliding windows defective. The Nu-Sash window is a good product, but here the installation was wrong. In his opinion the problem could be resolved by re-leveling the aluminum sills, which would require taking the frame apart and recutting the jambs. Drilling new weepholes might alleviate the problem also. The windows are racked, and just shimming the sills would not make a tight "weather-type" condition at the corners. A drawing of a corner of the window, jamb and sill of the type in question was received in evidence by stipulation of the parties. He testified that the work was unmitered, and even if it were caulked and not in a "plumb condition" it would leak. Referring to the drawing he stated that the screw holes should be caulked before screws are driven through the aluminum sill into the existing wood. When Moran was asked on direct examination what it would cost to repair the windows, the following colloquy occurred:

"A: I would estimate that it would take — because it's not just a matter of replacing the sills, it's a matter of changing the jamb, as I said, the left or the right, whichever the case. The window has to be taken down. It would take — nine windows — I would estimate two and a half hours to three hours per window of work time. At whatever rate the people have, I would say a minimum of $2000.

Q: All right.

A: For 24 hours.

THE COURT: That's ...


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