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J.r. Sinnott Carpentry, Inc. v. Phillips

OPINION FILED NOVEMBER 18, 1982.

J.R. SINNOTT CARPENTRY, INC., PLAINTIFF AND COUNTERDEFENDANT-APPELLANT,

v.

JAMES E. PHILLIPS ET AL., DEFENDANTS AND COUNTERPLAINTIFFS-APPELLEES.



Appeal from the Circuit Court of Champaign County; the Hon. John G. Townsend, Judge, presiding.

JUSTICE LEWIS DELIVERED THE OPINION OF THE COURT:

Roger Sinnott, on behalf of the plaintiff corporation J.R. Sinnott Carpentry, Inc., entered into a contract with defendants, James and Susan Phillips, for the construction of an addition to defendants' house in Urbana, Illinois. Plaintiff brought this suit to recover a sum allegedly due under the contract. Defendants' counterclaim alleged that (1) plaintiff breached the contract; (2) plaintiff was negligent in the construction of the addition; and (3) plaintiff breached a written warranty against defects and negligence.

The contract provided that defendants were to pay for all labor at the rate of $12.95 per hour, payable monthly, and to pay for all material at plaintiff's cost payable on the first day of each month. The contract provided that work was to be performed "in accordance with the plans and specifications attached hereto." However, no plans or specifications were attached to the contract. James Phillips testified that he did not want Sinnott "feeling trapped into a fixed type contract" and that they wanted Sinnott to have enough latitude to build what defendants wanted. Sinnott testified that he had made floor plans from sketches made by Susan Phillips and that defendants indicated they did not need any more detailed plans or specifications than what they had. Susan Phillips testified that she asked Sinnott if they would need an architect and he said it would not be necessary because he had enough plans to go ahead and build the addition.

Susan Phillips' sketches depicted floor plans for the addition. Susan testified that the sketches represented three livable floors and that the third floor was to have two rooms, a play room and a sewing room, and that there were to be dormer windows on the third floor. Sinnott made blueprints from the sketches and subsequently had a second set of blueprints made by Thompson Lumber Company.

The Thompson Lumber Company blueprints indicated dormer windows on the third floor. There was also a door on the third floor which was marked as six feet eight inches high and a wall which divided the third floor into two distinct areas. Sinnott testified that he represented to defendants he could build the structure shown in the Thompson Lumber Company blueprints. He also testified that he always believed he was going to build two floors with a storage attic and never envisioned a three-story project. He thought the third floor was for storage and possibly a play room.

Susan Phillips testified that she specifically told plaintiff that she wanted a third floor which was to consist of a play room and a sewing room and was to have dormer windows. James Phillips testified that before the contract was entered into he told Sinnott that they wanted three floors with livable space.

Defendants' expert, Richard Willms, a general contractor, testified that Sinnott's blueprints and the Thompson Lumber Company blueprints called for three stories of habitable space with dormer windows. The basis for his belief that three stories were called for was the six-foot eight-inch door on the third floor shown in the Thompson Lumber Company blueprints. He said defendants' addition was not in accordance with the plans because it did not have dormer windows or a third floor. He said the structure could not be repaired without tearing it down. He also testified that it is customary to provide vertical section drawings which give floor elevation and headroom and without such drawings one cannot tell whether the structure can be built.

Henry Spies, a staff member of the Small Homes Council and Building Research Council at the University of Illinois, testified in an evidentiary deposition that the plans called for three floors of habitable space and dormer windows and that the building was not in accordance with the plans. Spies testified that it was customary to provide section plans and that a competent contractor should have realized that a building could not have been built according to the Thompson Lumber Company blueprints.

Susan Phillips testified that she was not aware of a problem with the height of the third floor until the roof was put on the addition and the side of the house adjacent to the addition was broken into. She said she did not go up to the third floor earlier because it was only accessible by a ladder which she did not want to climb because she was "carrying around" a small baby. She testified that the height of the third floor is about five feet six inches in the center. A photograph of the attic shows exposed wooden rafters that slope downward from the center of the attic. Susan further testified that, after she discovered the low ceiling on the third floor, she told Sinnott there was no reason to install dormer windows on the third floor. She testified that Sinnott never told her there would not be three floors of habitable space.

At trial, defendants introduced evidence relating to alleged defects in material and workmanship. Susan Phillips testified that she wanted one-inch by eight-inch tongue-and-groove pine flooring. She said plaintiff installed tongue-and-groove flooring on the second floor, but installed common pine on the first floor. She testified that the boards on the first floor were pulling apart and splitting. Defendants also presented evidence of the following defects: a stairwell with insufficient headroom; a leak in the vestibule resulting from improper flanging on the roof; a stairway with a bottom step 10 inches high and all other steps six inches high; the walls of the building were only four inches thick, whereas defendants had asked for six-inch walls; one of the windows on the first floor was not thermopane although defendants had requested that all windows be thermopane; and a problem with the threshold where the second floor of the addition met the second floor of the house.

Campbell Evans, a real estate appraiser, testified that the replacement cost of an addition similar to what defendants have now would be $73,246 and the fair market value of such an addition would be $43,948.80. He testified that the replacement cost of a three-floor addition would be $122,850 and the addition would have a fair market value of $73,710. Evans' figures for replacement costs were derived by multiplying the square footage of habitable floors by $60 per square foot. The figures for market values were obtained by multiplying the replacement cost by 0.6.

James Phillips testified that plaintiff originally estimated the cost of the project to be $40,000. Defendants have paid to plaintiff $84,216.63 under the contract.

Sinnott testified at trial that $17,455.91 was due under the contract for labor and materials. Defendants responded that they were billed twice in the amount of $1,233.31 for work done by a subcontractor. Defendants also disputed other charges but conceded that their balance was $14,543.47.

The trial court found that the contract provided for three floors of habitable space; that this provision was an essential part of the contract; and that plaintiff failed to substantially perform the contract by not building three floors of habitable space. Accordingly, the court held that plaintiff could not recover under the contract. The court also determined that, although plaintiff breached the contract and was negligent in failing to provide section drawings, defendants suffered no ascertainable economic loss other than the cost of repairing the defects in material and workmanship. Finally, the trial court found that defendants had been damaged by plaintiff's negligence in disconnecting an electric freezer which caused the loss of meat inside the freezer. The trial court awarded defendants $9,101.36 as the cost of repairing defects and $250 as damages resulting from plaintiff's negligence.

I

Plaintiff maintains that certain parts of the trial court's judgment were against the manifest weight of the evidence. For a judgment to be against the manifest weight of the evidence it must appear that the conclusions opposite to those reached by the trier of fact are clearly evident. Joray Mason Contractors, ...


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