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Miller v. Racine Trust

OPINION FILED SEPTEMBER 18, 1978.

ARNOLD MILLER, D/B/A MILLER ROOF COMPANY, PLAINTIFF-APPELLEE,

v.

RACINE TRUST ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. NATHAN B. ENGELSTEIN, Judge, presiding.

MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:

Plaintiff, Arnold Miller, d/b/a Miller Roof Company, entered into a contract with defendant, Racine Trust, to repair for $22,875 a leaking roof on a building owned by defendant in Racine, Wisconsin. Despite the repair work, the roof continued to leak and defendant refused to pay. Plaintiff, alleging full performance by him, filed suit against defendant and Louis Terry and Sheldon Terry, trustees of the defendant Racine Trust, seeking $23,050, the contract price plus an additional $275 as an agreed extra. Defendants answered the amended complaint, denying performance by plaintiff. Defendant Racine Trust filed a counterclaim alleging that, despite an express warranty that the roof would be leak-proof for 18 months, the roof continued to leak and that Racine Trust will be required to complete the roofing work promised by plaintiff at a cost of $50,000. After a bench trial, judgment for $17,500 was entered for plaintiff against all three defendants and judgment was entered against defendant Racine Trust on its counterclaim. Defendants appeal, contending that the trial court erred in denying their motion to dismiss at the end of plaintiff's case, the findings and judgment against defendants are against the manifest weight of the evidence, and the court erred in excluding certain evidence. Defendants Louis Terry and Sheldon Terry also contend that they were not liable individually. There is no appeal by defendant Racine Trust from the judgment against it on its counterclaim.

Racine Trust, of which Sheldon Terry and Louis Terry were trustees, owned a building in Racine, Wisconsin, two of whose tenants were a Zayre store and a Piggly-Wiggly store. The roof of the building, which was several years old, had developed leaks. Plaintiff, who had done work for the Terrys on another store in Chicago, met with them in August 1973. After plaintiff had examined the roof on the Racine building, he agreed to give an 18-months warranty on his work and submitted his form contract to the Terrys, which they rejected. At another meeting held shortly thereafter, Louis Terry's secretary drew up a contract, using the form contract which plaintiff had submitted. The Terrys testified that the contract consisted of two pages. Plaintiff testified, and the trial court so found, that there was a third page, which contained the conditions set out on the reverse side of his form contract and that certain of the conditions had been stricken by the Terrys.

The contract, which was signed by the parties on September 17, 1973, provided:

"I. It is understood that the present roof leaks are to be permanently repaired to include (but not limited to) the following items:

1) Completely broom sweep roof.

2) Repair and permanently caulk vitrious tile coping so as to be waterproof. Any loose tile shall be permanently cemented back in.

3) Cap all flashings with asphalt membrane.

4) Coat all parapet walls to include covering flashings.

5) Break bubbles, repair with new felt and mop down.

6) Replace all rotted, torn roof covering (tar paper or felt) as needed before new coat of asphalt is applied.

7) Waterproof and coat stack vents.

8) Waterproof and coat all metal air-conditioning housings where they meet the roof surface to insure they do not leak.

9) Replace felt or roof decking where necessary.

10) Cap gutters to prevent water back-up.

11) Final coating of Perma-Seal applied at 250 degrees sprayed under 300 lbs. of pressure.

12) Respread all roof gravel at finish of job.

II. The full price for this contract (including all labor and material) and all other costs involved shall be $30,000. Payment shall be made within 10 days from date of completion.

Price quoted is complete and no extras will be paid unless authorized by the Racine Trust in writing.

III. Miller Company warranties, without reservation, that the material and workmanship provided for these repairs shall result in a leak-proof roof for the period of 18 months from the completion of this work. Miller Company shall evidence the completion of such work ...


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