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Schoeneweis v. Herrin





Appeal from the Circuit Court of Madison County; the Hon. P.J. O'Neill, Judge, presiding.


The plaintiff, Ronald Schoeneweis, hired defendant, Raymond Herrin, a construction contractor, to build a house using plaintiff's plans. Subsequent to moving into the house, plaintiff brought the instant action to recover the cost of remedying alleged defects in the concrete work on the patio, driveway, and basement floor and to recover for an alleged shortage in the size of the house as compared to the area contracted for. Defendant appeals from a judgment by the court in plaintiff's favor for $4,000 plus costs of suit.

On appeal, defendant contends that (1) plaintiff agreed to accept the house "as is," and (2) the amount of the judgment is not supported by the evidence. Defendant seeks either outright reversal, that damages be reduced to nominal damages, or that the cause be remanded for a new trial as to damages only. Plaintiff's brief states that he "has no objection for a reversal and remand" on the issue of damages; alternatively, plaintiff seeks affirmance.

Plaintiff's ultimate complaint alleged, inter alia, that defendant had committed a breach of his agreement with plaintiff by negligently constructing the concrete basement floor, driveway, and patio, and by constructing the house in a size less than that agreed upon. In a second count, the complaint alleged that defendant had failed to construct the house in a good and workmanlike manner, citing the allegedly defective concrete work referred to in the prior count and other defects.

According to testimony adduced at the trial, the parties entered into two written agreements concerning the construction. The first, dated August 16, 1978, stated in pertinent part:

"I, Ray Herrin, agree to build, in a workmanship [sic] manner, a house 1206 sq. Ft. on the property owned by Mr. Schoeneweis, for him according to his plans. * * * The total cost of this construction will be $37,600.00. [Defendant's signature.] I, Ronald Scheoneweis [sic], do agree to pay Ray Herrin $4000.00 upon starting this construction and the remaining $33,600.00 within 30 days of completion upon my satisfaction, and the banks [sic] approval of appraisal. [Plaintiff's signature.]"

The second agreement was dated January 5, 1978; however, according to plaintiff, the date should have been 1979. It stated in its entirety:

"The undersigned, Ronald Schoeneweis, hereby agrees to accept the house on lot #57 Illinois Street in South Roxana, built by Ray Herrin Construction as is. And will complete the yard work and other various carpentry work for which the undersigned is entitled to a rebate in the amount of $1,000.00. [Plaintiff's signature.]"

Testimony at trial was, in pertinent part, as follows:

Plaintiff testified that water periodically entered his basement between the wall edges and the foundation; the basement floor was cracked in at least half a dozen places; and the floor was not cracked when he moved in on January 5, 1979. He related that he had attempted to seal the floor with sealing compound and waterproof paint without success. He also testified that the driveway had settled and cracked and was now sloped toward the house, as had the patio, all since he had moved in. Plaintiff stated that during construction he had visited the site daily or every other day and that by January 5, 1979, the parties disagreed so badly that they were not speaking to each other. Plaintiff denied being told by defendant that the driveway should have gravel underlying it and should have been permitted to settle before pouring.

On cross-examination regarding the January 5 agreement, plaintiff replied affirmatively when asked whether defendant had made it clear that he no longer wanted to have anything to do with plaintiff. When asked whether such agreement meant that the parties would not have anything more to do with each other and that defendant was not going to have anything more to do with the house, plaintiff replied that he couldn't say they made that agreement either. Instead, according to plaintiff: "He just wanted me to finish it." On redirect examination, plaintiff testified that he did not think that he was waiving construction defects.

Plaintiff testified that the yard was landscaped (graded) by a small tractor in the summer of 1979.

Defendant testified under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 60) as follows: The house as built was only 1,152 square feet. There was no rock base underlying the basement floor or the driveway, but the soil underlying that concrete work had been packed and tamped. He related that plaintiff had refused to allow defendant to put rock in place and let it settle before pouring the driveway; that plaintiff had said he did not trust defendant to come back; and that plaintiff said just go ahead and pour it. Defendant stated his opinion that if the patio and driveway sloped toward the house, they must have settled somewhat and that, if there was a water problem in the basement, it was caused by plaintiff's refusal to allow defendant to grade the yard and plaintiff's failure to do it himself promptly.

Dr. Harry Duffy, a registered professional engineer and director of the civil engineering program at Southern Illinois University-Edwardsville, testified for plaintiff as follows: He inspected plaintiff's house in August 1979 and there was water standing in the basement and the basement floor and driveway were badly cracked. Both the driveway and the patio sloped toward the house. The witness was of the opinion that the driveway and basement floor should have had four to six inches of crushed rock base; the basement floor should have been reinforced and drain tile should have been laid outside the foundation; the driveway should have had more expansion joints; and the driveway and patio should not have sloped toward the house. Proper repairs would require removal and replacement of the basement floor and driveway, and a sump pump should be installed in the basement or ...

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