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Altevogt v. Brinkoetter





Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Macon County, the Hon. Donald W. Morthland, Judge, presiding.


Rehearing denied June 4, 1981.

The plaintiffs, Homer F. Altevogt and Sarah M. Altevogt, filed a complaint in the circuit court of Macon County on July 12, 1978, against Tom Brinkoetter and Company, the Citizens National Bank of Decatur, and John (Sonny) Hinton, Jr., seeking damages of $20,000 for alleged defects in a new house purchased from Tom Brinkoetter and Company and built by Hinton. The complaint was dismissed, as was a first amended complaint, and on March 9, 1979, the plaintiffs filed a second amended complaint which substituted Thomas B. Brinkoetter for Tom Brinkoetter and Company as the defendant from whom the plaintiffs had purchased the property. Motions by each of the four defendants to dismiss the second amended complaint were granted by the circuit court.

The plaintiffs took an appeal to the appellate court from the dismissal of the action as to Thomas B. Brinkoetter and Hinton. The court reversed the judgment and remanded the cause as to Brinkoetter, and affirmed the judgment as to Hinton. (81 Ill. App.3d 711.) We granted petitions for leave to appeal filed by the plaintiffs and by Brinkoetter under Rule 315(a) (73 Ill.2d R. 315(a)) and consolidated the appeals. Tom Brinkoetter and Company and the Citizens National Bank of Decatur are not parties to the appeals.

The second amended complaint was in three counts. Count I sought recovery from Brinkoetter for the alleged breach of an implied warranty that the house was fit for habitation. Count II sought recovery from the bank on the same theory. Count III sought recovery from Hinton for breach of a warranty to build the house in a reasonably workmanlike manner. We consider first the action against Brinkoetter.

The complaint alleged that Brinkoetter was the beneficial owner of a lot in Decatur, legal title to which was held by the bank as trustee, and that he contracted with Hinton, on a date not stated in the complaint, to build a house on this lot. It was further alleged that on May 1, 1973, the plaintiffs and Brinkoetter entered into a written contract whereby the latter was to sell the premises to the plaintiffs for the sum of $30,500, which sum had been fully paid. A copy of the contract was attached to the complaint. The premises were conveyed to the plaintiff on June 8.

Count I does not allege that the house was in existence when the contract of sale was executed, nor, on the other hand, does it allege that Brinkoetter promised the plaintiffs to build a house on the lot as part of the transaction. And neither the complaint nor the contract states that the subject of the sale was the lot as improved with a house. The house may have been in the process of construction when the contract was executed, for added to the printed form is a handwritten list of eight items, including the installation of drywall and plumbing fixtures and electrical outlets, which the seller agrees to complete.

Count I is also silent as to when the house was completed. Count III, however, alleges that it was not finished until the last week of July. In answers to interrogatories the plaintiffs stated that they moved into the house on June 23.

Count I enumerates five defects which allegedly rendered the house unfit for habitation. It is alleged that these defects were not known to the plaintiffs and could not reasonably have been discovered at the time of purchase or at the time of completion.

In his motion to dismiss and on this appeal Brinkoetter contends that the action against him was barred by limitations, and that the complaint fails to state a cause of action because it does not allege that he was the builder as well as the vendor of the house. The appellate court considered only the first of these contentions.

The warranty which is the basis of the action against Brinkoetter arose out of the written agreement between Brinkoetter and the plaintiffs (Petersen v. Hubschman Construction Co. (1979), 76 Ill.2d 31, 41). The warranty was not set forth in the contract, however, but was implied by law. The question thus arises as to whether this case is governed by the 10-year period prescribed by section 16 of the Limitations Act (Ill. Rev. Stat. 1979, ch. 83, par. 17) for actions on a written contract or the five-year period prescribed by section 15 (Ill. Rev. Stat. 1979, ch. 83, par. 16) for "actions on unwritten contracts, express or implied * * * and all civil actions not otherwise provided for."

Brinkoetter contends that it is section 15 which applies, citing in support of his position Mowatt v. City of Chicago (1920), 292 Ill. 578. Mowatt did not involve an implied warranty, and it is not controlling here. The question whether an action such as this should be characterized as one on a written contract has not received a uniform answer in the courts> of other States. (See Annot., 1 A.L.R.3d 914, 917 (1965).) It need not be resolved here, however, for the plaintiffs agree in their brief that the case should be governed by the five-year period. We therefore proceed on that assumption, as did the appellate court.

The next question for consideration is the date when the five-year period started to run. Brinkoetter contends that it was May 1, 1973, when the contract was executed. The plaintiffs contend that it was the last week of July of that year, i.e., from July 24 to July 31, when construction of the house was completed. The significance of the choice of starting points is that the original complaint was filed on July 12, 1978, whereas the second amended complaint, in which Brinkoetter was first made a defendant, was not filed until March 9, 1979. Measured from the execution of the contract, the original complaint, and thus the second amended complaint, ...

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