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Downes Swim. Pool v. N. Shore Nat'l Bank

OPINION FILED MAY 18, 1984.

DOWNES SWIMMING POOL, INC., PLAINTIFF-APPELLANT,

v.

NORTH SHORE NATIONAL BANK, TRUSTEE, ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. Rosemary D. LaPorta, Judge, presiding.

JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

Plaintiff appeals from a judgment for defendant J. Roderick MacArthur (MacArthur) on his counterclaim for the cost of completing and repairing a swimming pool partly constructed by it, contending that (a) having breached the contract by wrongfully terminating it, MacArthur was not entitled to a setoff for the cost of completing the pool; and (b) the trial court erred in awarding damages for breach of warranty where the express warranty relied upon was conditioned on payment in full of the amount due under the contract.

On November 22, 1978, plaintiff and MacArthur entered into a contract for the construction of a swimming pool at MacArthur's residence for $29,749, the estimated construction period to be "20 to 25 working days and in no event later than 10 days beyond completion of enclosure." The parties eventually agreed upon a June 8, 1979, completion date, but the construction was still incomplete on October 1, 1979, when MacArthur informed plaintiff that it was to cease work on the project, that he would hire others to complete it, and that the cost thereof would be charged against any balance due plaintiff. At that time, MacArthur had made payments totaling $29,566.62. Plaintiff billed MacArthur for the balance due under the contract and for alleged extras, deducting from the bill credits for work which it had not completed. When no further payments were made, plaintiff commenced the instant action seeking foreclosure of its mechanic's lien or, in the alternative, recovery on the contract. In their answer, defendants asserted that plaintiff had breached the contract and was therefore not entitled to any recovery, and MacArthur counterclaimed for the cost of completing the pool and for damages allegedly caused by plaintiff's defective materials and workmanship.

At trial, witnesses for plaintiff testified that construction began in November 1978, with excavation of the site and installation of a concrete shell, but it was understood that no work could be done during the winter months, and that construction would resume in the spring. According to those witnesses, it was originally planned that the pool would be enclosed, necessitating coordination of plaintiff's work with that of the contractors hired to build the enclosure. However, on April 18, 1979, plaintiff was notified that MacArthur had decided not to enclose the pool, and his architect, Thomas Hickey (Hickey), requested that construction resume immediately, since MacArthur wanted the pool ready for use that summer. It was explained to MacArthur that plaintiff's work had been scheduled with the understanding that the pool would be enclosed, that its workers were then occupied with other scheduled work, and that, while they would return to MacArthur's project as soon as possible, it was doubtful that work thereon could recommence until sometime in May. On May 4, 1979, plaintiff's representative met with MacArthur and Hickey, and it was agreed that plaintiff would complete the work by June 8, 1979, provided that other contractors were on schedule with their work. At that time, the only work remaining to be done by plaintiff was installation of tiles on the floor and sides of the pool, plastering, placement of the pool equipment, and testing of the system.

Plaintiff's witnesses also testified that further delays which were beyond plaintiff's control prevented completion of the project by June 8. The contractor hired by Hickey to do the concrete deck work around the pool did not complete its work until the first or second week of July, preventing plaintiff from plastering the pool until the middle of that month. Early in June, MacArthur decided to add a spa, and the equipment therefor was ordered but could not be placed until sometime in August when MacArthur and Hickey finally decided where the spa and pool equipment would be housed. After numerous changes, an equipment room was completed in August, and by the end of August all of the pool equipment was installed therein, but it was impossible to make the final connections because the necessary utility lines, which were to be installed by another contractor, were not yet in place. In September, the spa was completed, and all that remained was installation of a pool cover and testing of the system when plaintiff was notified by Hickey that MacArthur was terminating the contract and intended to hire others to complete it. MacArthur was billed for the work done, including extras not covered by the written contract, and credits were given for the work not done; i.e., installation of the pool cover, some incomplete electrical work, and installation of a valve. MacArthur refused to pay the bill, and plaintiff was not notified of any problems with the work nor given the opportunity to correct them.

Witnesses for defendants testified that the pool was originally planned as an outdoor pool, and that the reference in the contract to "enclosure" meant the enclosure of the pool equipment, not enclosure of the entire pool. There was some discussion of enclosing the pool in the early months of 1979, but the idea was abandoned when it appeared that the cost would be prohibitive. At a meeting in May, plaintiff's representative was informed that MacArthur wanted the pool completed as quickly as possible, and he was assured that it would be done by June 8; however, the pool was not completed as promised, and plaintiff failed to comply with repeated demands that workers be sent to finish the project. Whenever such a demand was made, workmen would appear for a day or two, then no further work would be done for two or three weeks, until MacArthur or Hickey called and again insisted that plaintiff return to the jobsite. These witnesses denied that plaintiff's work was delayed by other contractors, by the unavailability of parts and equipment, or by minor changes which MacArthur requested.

Defendants' witnesses further testified that because of plaintiff's repeated delays and failure to comply with demands that it resume work, MacArthur terminated the contract and hired others to complete the work in the spring of 1980. An architect engaged to supervise the completion stated that when he first saw the pool in late January 1980, it was not covered, there was water standing in the deep end of the pool, and the plaster finish was cracked, blistered, and peeling on all four walls. The damage could not be repaired by patching, and it was necessary to chip and sandblast the original plaster and apply a new coat of plaster. Other witnesses testified that the damage to the plaster was the result of improper application thereof to the concrete shell. They explained that plaster should be applied as soon as possible after the gunite shell (a concrete mixture applied by spraying) is in place to ensure a clean undersurface and proper bonding. In their opinion, since the plaster was not applied until more than six months after the concrete was installed, plaintiff should have sandblasted the concrete and applied an acid wash prior to plastering, or should have used a heavy acid wash and applied a bonding agent. Those witnesses also opined that mixing the plaster with dye, which was added to achieve a dark surface, compounded the problem by weakening the bonding of the plaster to the concrete.

Defendants' witnesses acknowledged that if a pool is not properly cared for through the winter months, by keeping it partially filled, cracks can develop as a result of the pressure placed on the concrete shell by the freezing of surrounding ground water. However, they asserted that the damage caused would be a cracking of the concrete shell with matching cracks in the plaster surface. When MacArthur's pool was sandblasted, they discovered that only the plaster was cracked; the concrete shell was in good condition with the exception of a single crack in the floor of the pool at the deep end, an area which had been covered by water during the winter months. Furthermore, there was no difference in the condition of the plaster in areas which had been protected by water and those which had not. These witnesses also testified that it was necessary to make slight changes in the plumbing system designed by plaintiff; to install a different type of filter because the filter provided by plaintiff was inadequate; to reposition the equipment for easier access in servicing; and to provide a safety cover, diving board, missing pool cleaning equipment, a line to fill the pool, and lights. They also stated that when the equipment provided by plaintiff was tested, it was discovered that plaintiff had crossed some of the water lines, making it necessary to break open the concrete deck to repair them. Finally, when the pool was filled, several leaks appeared and had to be repaired.

In rebuttal, witnesses for plaintiff acknowledged that the gunite shell was not sandblasted prior to plastering, and that plaintiff had not applied a bonding agent. However, they asserted that such measures are necessary only when replastering an old pool, and offered the opinion that the damage to the plaster in the instant case was the result of MacArthur's failure to properly winterize the pool by keeping it partially filled and covered.

The trial court found that plaintiff's failure to complete the project by June 8, 1979, was excused by delays beyond its control in the work of another contractor as well as by the numerous changes in plan occasioned by MacArthur and Hickey, some of which occurred as late as August 23, 1979. It further found that plaintiff had provided labor and materials, including extras, having a net value of $39,509.40, resulting in an unpaid balance due of $9,942.78. With regard to MacArthur's counterclaim, the trial court found that various items required by the contract were not completed, and that the defective plaster, the leaks, and other problems with the system were covered by an express warranty, which provided in relevant part:

"The pool structure is guaranteed against cracks which may cause leaks for a period of five years from the date of completion. The Contractor warrants other work performed under this agreement to be free from defects in material and workmanship for a period of one year from the date of completion. * * * The Contractor also is not responsible for damage resulting from improper operation of the equipment, lack of care of the equipment, or improper winterizing of the pool and equipment. This warranty is contingent upon full payment of the amount required under the agreement."

The trial court therefore allowed the following items as a setoff against the amount due plaintiff for the work performed:

Replastering: $10,399.00 Pool equipment changes: 2,550.00 Repairing crossed lines: 1,182.60 Repairing leaks: 1,006.85 Installing check valve and repairing leaks: 100.00 Starting boilers and checking system: ...


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