Appeal from the Appellate Court for the Third District; heard
in that court on appeal from the Circuit Court of Tazewell
County, the Hon. Charles J. Perrin, Judge, presiding.
JUSTICE WARD DELIVERED THE OPINION OF THE COURT:
The plaintiffs, Warren and Josephine Park, brought an action against the defendants, Dennis Sohn and his wife, for damages because of defects in the house sold to them by the defendants. Their complaint set out two counts: The first alleged that the plaintiffs were defrauded into making the purchase through the defendants' misrepresentations of facts and failure to disclose defective conditions. The second alleged that the defendants had breached a warranty of habitability implied in the sale of the house. After a bench trial in the circuit court of Tazewell County, the court entered judgment in favor of the plaintiffs on both counts. The appellate court reversed the judgment as to count I. The court reversed as to count II and remanded the cause for a new trial as to damages only. (90 Ill. App.3d 794.) We granted the defendants' petition for leave to appeal under Rule 315 (73 Ill.2d R. 315).
On May 25, 1973, the defendants purchased the lot upon which the house was constructed. They built the house and moved in sometime in August 1974, although it appears from the testimony of Dennis Sohn that construction work on the house was still being performed in the summer of 1975. Prior to moving in, the defendants lived in another house that Sohn had constructed. He was not a full-time builder, but since building the plaintiffs' house he has constructed six other houses. It appears that he was trained in construction work by his father, who assisted him in the building of the house sold to the plaintiffs. Mr. Sohn testified that the house was listed with a realtor for sale before he and his wife moved in, although he contradicted that statement in response to leading questions by his attorney. Mrs. Sohn testified that the house was listed with a realtor sometime prior to August 22, 1974.
The defendants sold the house to the plaintiffs in October 1976. Since April or May 1976, Mr. Sohn had represented or advertised himself as a general contractor by word of mouth. There was no evidence at trial that the defendants or their realtors had made any representations to the plaintiffs about the existence of a sump pump in the backyard, or about water seepage into the crawl space below the house. Mrs. Sohn had told the plaintiffs that the defendants had had no problem with the septic system except that it had once become clogged when a child flushed a popsicle stick into it.
On November 13, 1976, an electrician working beneath the house informed the plaintiff, Warren Park, that there was water in the crawl space. Park investigated the situation, and he discovered a dry well with a sump pump in a hill about 20 feet from the house. There was conflicting testimony as to whether the cover of the pump was visible from the house. The realtor who had shown the plaintiffs the property testified that he had not seen it. The pump had been installed by the defendants in 1975 to prevent surface water from accumulating along the edge of a road located upon ground above the house. The pump was not working when Park discovered it. He testified, though, that the pump was connected and that power was flowing to it. He purchased a new pump for $80.31 and installed it. He testified that the new pump did not completely solve the water problem because puddles continued to form in the crawl space under the house, causing odors. The plaintiffs paid $627 to install two trenches with drain tile in the rear of the house for additional drainage. Also, they were required to use dehumidifiers.
In the summer of 1977, the plaintiffs learned that the sump pump is actually located upon the land of an adjoining landowner. The area in which the pump was located had been sodded, and shrubbery had been placed there by the defendants. This had given the plaintiffs the impression that the area was part of the lot they were purchasing. The plaintiffs admitted, however, that no one had told them that the lot extended to the area where the pump was located, and no contention was made that the description in the deed and contract was incorrect.
Moreover, their house actually was located in violation of a subdivision lot-line restriction. A sidewalk and a drain for their eaves encroached upon the adjoining landowner's property. The plaintiffs bought a portion of the adjoining lot for $4,000 from the owner, although it appears that the plaintiffs purchased somewhat more land than was required to conform to the restriction and to acquire the sump pump area. In addition, the plaintiffs altered the drain of the eaves to direct it away from the adjoining property.
The plaintiffs also experienced difficulties with the septic system. In the spring of 1977 sewage appeared on their lawn. They had the septic tank repeatedly pumped, but a flow of sewage into the lawn and street, causing odors, continued. A contractor testified it would cost approximately $4,500 to eliminate the problem in accordance with recommendations made by the Tazewell County health department. This work would entail completely removing the present seepage-field system and installing a sand filter, which has an overflow-type system. A change of systems would be necessary because underground water that surfaced at different times of the year interfered with the seepage-field system.
At the time the house was built, some other homes in the area had seepage-field systems. Sohn testified that a sand-filter system could not have been installed by him because he did not have a drainage easement, which was needed for that kind of system. The contractor, who testified for the plaintiffs, agreed that an easement would have been necessary. Sohn also testified that when the house was being constructed a health inspector told him that the seepage system was being conditionally approved, but he warned that it might or might not prove to be inadequate. The inspector said that if there were to be problems with it they would soon manifest themselves. Sohn and his wife testified that they had experienced no problems with the septic system while living in the house, except when the sewer connecting the house and the septic tank had become clogged by a popsicle stick. They, therefore, had no knowledge of a defect.
On March 16, 1979, the trial court entered judgment for the plaintiffs for $4,000 on count I of their complaint, which alleged fraud by misrepresenting or concealing the claimed defects. The court entered judgment for the plaintiffs for $2,707.31 on count II, which alleged a breach by defendants of an implied warranty of habitability. As we have stated, the appellate court reversed the judgment on the first count and held that the amount of damages awarded on the second count was inadequate and remanded the cause for a new trial on the question of damages.
The reversal as to the fraud count was proper. There was no evidence that the defendants made any representation to the plaintiffs that they knew to be false, nor was there evidence that they knowingly concealed defects from the plaintiffs. We agree with the appellate court that the plaintiffs failed to show scienter, an essential element of actionable fraud. Soules v. General Motors Corp. (1980), 79 Ill.2d 282, 286 (fraudulent misrepresentation consists of a false statement of a material fact known or believed to be false by the maker); Steinberg v. Chicago Medical School (1977), 69 Ill.2d 320, 332 (scienter is an element of an action for fraud); Semmens v. Semmens (1979), 77 Ill. App.3d 936, 940 (concealment, to constitute fraud, must be proved to have been done with the intent to deceive under circumstances creating an opportunity and duty to speak).
We reject the plaintiffs' argument that the defendants are liable for misrepresentation because shrubbery they had planted was mistakenly planted beyond the lot line. The plaintiffs contend that the placement of the shrubbery was tantamount to a pointing out to them of the boundary, upon which representation they relied. There is, however, no evidence that the defendants or their realtors ever indicated to the plaintiffs that the shrubbery demarcated the lot, or that the defendants had that intention. There is no indication that the plaintiffs ever requested the defendants to point out to them the lot line. In such circumstances, we do not think that the defendants could be considered as having made a false representation of the lot line to the plaintiffs. Cf. Malchow v. Tiarks (1970), 122 Ill. App.2d 304 (seller's agent's statement to buyer that a particular stake marked the boundary of lot being purchased was an assumption of a duty to locate the boundary correctly).
The appellate court was correct in its holding that the trial court's judgment for the plaintiffs on the second count should be affirmed, except on the question of damages. Here there was an implied warranty of habitability, which this court recognized in Petersen v. Hubschman ...