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Kangas v. Trust

OPINION FILED OCTOBER 27, 1982.

ANTTI KANGAS, D/B/A KANGAS CONSTRUCTION COMPANY, PLAINTIFF-APPELLANT,

v.

ANTHONY TRUST ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Lake County; the Hon. Harry D. Strouse, Jr., Judge, presiding.

PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:

Antti Kangas, d/b/a Kangas Construction Company, appeals from a judgment denying recovery under his suit for a mechanic's lien, and awarding the homeowners, Anthony Trust and Madeline Trust, his wife, $25,155.21 on their counterclaim. On appeal Kangas does not challenge the dismissal of his lien claim but contends that several items were improperly included in the damages awarded.

On November 7, 1977, the Trusts contracted with Kangas for construction of a duplex house on property owned by the Trusts. Mrs. Trust testified that it was intended as a home that they planned to live in as a retirement home with an apartment for her parents. The original contract price was $132,496 payable in two installments, the first due when the house was under roof and the balance when the house was completed to the Trusts' satisfaction; with extras, the price by later agreement was $144,482.60. The house was to be completed within 120 days from the ground breaking.

The house was under roof in January 1978 when problems developed. The asphalt roof shingles would not flatten out because workmen placed the shingles over accumulated ice and snow; and the roof sagged because the rafters were set at different levels. According to Mrs. Trust, Kangas told her that the shingles would flatten out in the summer heat, but they never did.

At trial, workmen who inspected and did repairs testified to other construction problems which indicated that work done by Kangas was not good and workmanlike. The entire house was "out of plumb." The exterior walls leaned out 1 1/2 inches; the floor tilted down 2 1/2 inches; the house sagged because the center beam in the basement was not level; the heating and air conditioning ducts were crooked and the standard fittings were nonexistent. The floor joist was single rather than double as called for in the contract, and the upstairs and downstairs floor joists had been reversed; as a result the joists ran in opposite directions and there was no bearing wall to support the second floor, which sagged.

A particular item challenged on appeal is the basement floor, which was poured at least four inches higher than called for in the contract. Ken Olson, the architectural designer who had drawn up the plans, testified that the basement walls were poured 4 1/2 inches too short and the only way to conform to the contract would have been to dig out the foundation and excavate further. He admitted that he was on the site when the floor was poured but denied the Trusts had authorized the basement floor at the level of seven foot six inches rather than seven foot 10 inches specified in the contract. The actual height variance from the plans was never definitely established. According to Kangas, from footing to the top of the foundation the height was seven foot six inches with a two-by-six plate on top of the concrete adding 1 1/2 inches. According to Olson, the variance was originally 6 1/2 inches, but ended up 4 1/2 inches after the concrete on the footing was depressed two inches. In his reply to the Trusts' counterclaim, Kangas admitted that the basement height was four inches shorter than specified in the plan.

The Trusts terminated the contract with Kangas in October 1978, and contracted with Olson to correct and complete construction. Olson said that his repairs, including installation of a new cedar roof, were done in the least expensive way and cost $45,000. The Trusts sold the house and lot together for $155,000.

In its judgment order the trial judge computed damages:

"[The parties] have made the following expenditures, had the following losses or would have had to expend the following sums to build, finish or correct the building * * *:

Kangas $ 63,000.00 Olson (Construction) 45,000.00 Olson (Inspection) 1,162.50 Items admitted by Kangas 1,710.00 Glue 66.00 Air Comfort 5,510.00 Blacktop 1,600.00 Rough Grading 1,126.42 Painting 2,150.00 Value of Lot 35,000.00 Carpet Allowance 2,976.00 Fence Replacement 267.09 Wallpaper 477.20 Brick above window 2,860.00 Lowering of basement floor 20,000.00 ___________ $182,905.21

That there should be deducted from the above the sum of $2,750.00 being one-half of the cost of finishing part of the basement and $155,000.00 being the price for which Defendants sold the premises in question."

The judge expressed additional findings that time was intended to be of the essence of the contract; that Kangas substantially breached the contract by not completing it within time; that there was bad workmanship, and that in various instances there was a "total failure to look at the plans and specifications." He also found that the roof was done in an unworkmanlike manner with no effort to cure the defective construction; that the basement height provided in the contract "was important to the Trusts"; that Kangas "didn't pay any attention to the plans and specifications" as to the basement height, and that by Kangas' own testimony he "built it the way he usually builds a house."

1. The Roof

• 1 Both parties agree that as to the roof the cost or remedying the defect is the proper rule of damages. (See Park v. Sohn (1982), 89 Ill.2d 453, 464.) A witness for Kangas testified that new shingles could have been nailed over the rippled shingles for $4,000 but did not estimate the cost of correcting the uneven rafters underlying the shingles. Olson, testifying for the Trusts, said that the repairmen "would have had to have taken the roof apart in certain areas, rebuilt it, eliminated all the shingles that were on the roof at the time, and reshingled it." In Olson's opinion, the cedar shakes roof was less expensive than insisting on full performance requiring the roof to be rebuilt. In oral argument Kangas has conceded that the cedar roof was the less expensive method of remedying the roof defects, but he further contends, citing St. Joseph Hospital v. Corbetta Construction Co. (1974), 21 Ill. App.3d 925, that the Trusts were unjustly enriched by installation ...


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