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Witty v. C. Casey Homes





APPEAL from the Circuit Court of Cook County; the Hon. EUGENE R. WARD, Judge, presiding.


This is a breach of contract action brought by plaintiffs, Roy A. and Anne Witty, against defendants, C. Casey Homes, Inc., a home-building contractor, and Davia and Benda, Inc., a masonry subcontractor. In their complaint plaintiffs alleged that contrary to the specifications in the building contract, which called for "face brick veneer," defendants substituted defective ordinary brick. In a bench trial defendant Davia and Benda was dismissed because it was not a party to the contract with plaintiffs. Plaintiffs have not appealed that order.

The trial court found that defendant Casey, the builder-vendor, had breached the contract but held that plaintiffs were not entitled to recover the estimated cost of correcting the defect ($50,000) because the method of correction, requiring the replacement of every brick in the home, was impractical. The court suggested that the proper measure of damages in this case was the diminution in value of the residence caused by installation of the defective brick. Since plaintiffs presented no evidence of loss of value, the court entered judgment for defendant Casey. From that judgment plaintiffs appeal contending (1) that the trial court erred in refusing to apply the cost of repair measure of damages for breach of a building contract; and (2) that the trial court should have awarded plaintiffs the cost of repair for breach of the implied warranty of habitability adopted in Petersen v. Hubschman Construction Co. (1979), 76 Ill.2d 31, 389 N.E.2d 1154. For the reasons which follow, we affirm the judgment of the trial court.

On October 5, 1972, plaintiffs entered into a building contract with defendant Casey for the construction of a single family residence in Oak Lawn, Illinois. The contract price was $54,566. Casey agreed to provide "all the materials necessary, and to make, erect, build and complete in a good, substantial and workmanlike manner," a home according to the specifications set forth in "Anderson Associates Plan #5631," which was attached to the contract. Paragraph three of the specifications states:

"Exterior walls: Face brick veneer as shown on plan. Face brick not to exceed $80.00 per thousand. Point all loose brick and joints."

Witty paid Casey the agreed upon contract price. Sometime after the residence was completed and Witty had taken possession, he noticed a problem with the brickwork: "It's flaking and popping, white particles from the interior of the brick [were] working their way to the exterior, popping off the surface of the brick." Casey failed to remedy the problem after Witty brought it to his attention. Witty subsequently brought suit against Casey, the builder-vendor, and Davia and Benda, the masonry subcontractor, alleging that defendants, without Witty's consent, had substituted defective ordinary brick in place of the face brick veneer required by the contract, and that the brick installed was deteriorating and disintegrating.

Witty testified that he did not select the brick to be used in the construction of the home. He had, however, picked out a particular color by pointing out that color on another residence built by defendant Casey on the same street on which the Witty home is situated. He also described the "flaking and popping" problem he had observed. Witty admitted that he saw the brick on the premises before it was installed but did not inspect it.

Paul E. Flood, an engineer employed by Walter H. Flood & Co., testified on behalf of the plaintiffs. After being qualified as an expert, Flood described what he had discovered in examining the brick at the Witty home:

"We found that the bricks were what would be termed common brick; they had a dark applied flashing to them; they contained lime balls that cause pop-outs in the brick that created some unsightly defects in the face of the brick, in the exterior walls of the brick; that we revealed these white particles, the lime balls, behind each pop-out that occurred."

In court Flood identified a brick removed from the fireplace wall as "Chicago common brick" which has an applied dark facing. The sample had defects that cause pop-outs. An analysis of the sample brick revealed that the material behind the pop-outs consisted essentially of lime,

"* * * which are called in the industry `lime balls,' that get in with clay sometimes, and, in the firing process of the brick, they are dehydrated, the calcium oxide. And when the brick is fired, they're interior in the brick.

And then as it ages, as it oxidizes through atmosphere and through moisture, these lime balls will convert back to lime or calcium carbonate and ultimately, with expansion, causes the defects in this brick and more serious in some others."

Some of the bricks in the home were "very badly warped out" more than one-quarter of an inch.

Witty's contract specified "face brick veneer." Flood testified that "face brick" is "brick made to a more stringent specification than common brick. It's * * * usually made from more select clays, it has a tighter quality control as far as warpage and distortion is concerned. It usually has a tighter quality control as far as color is concerned." "Brick veneer" indicates "a frame residence with brick applied to the outside as a facade to the wall. It's not a structural bearing member that it would be if it were ...

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