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Nisbet v. Yelnick





Appeal from the Circuit Court of Cook County; the Hon. Joseph A. Salerno, Judge, presiding.


Plaintiffs filed in the circuit court of Cook County a two-count complaint against defendant for the latter's alleged defective construction of plaintiffs' residence. Count I alleged a breach of the implied warranty of habitability; count II alleged a breach of the express warranty contained in the contract entered into between the parties which provided, in part, "[defendant], being the seller herein * * * does * * * guaranty the aforesaid premises to be free from defects in materials and workmanship for the period of one year from and after the completion date of said residence." The complaint alleged various defects in the home, including cracks in the foundation and walls, loose and cracked mortar, broken windows and doors.

After the trial, the jury returned verdicts in favor of plaintiffs on both counts of the complaint, awarding damages of $22,200 for the cost of repairing the home on count I and $5,000 for loss of use of the home on count II. Defendants bring this appeal.

On appeal, defendant contends that plaintiffs failed to introduce evidence demonstrating that defendant caused the defects in the home; that loss of use is not a proper measure of damages in this action; and that because plaintiffs, in fact, only alleged a single cause of action, the court erred in giving the jury two verdict forms and in entering judgment on two separate verdicts.

At trial, defendant was called by plaintiffs as an adverse witness. He testified: in September 1972 he entered into a written contract with plaintiffs to build their new home. Pursuant to the contract, he oversaw the construction and supervised and coordinated the various subcontractors. Plaintiffs "never" mentioned any problem with cracks in the foundation "at the closing or one year after." Defendant was not advised of any problems with the foundation until "four years after closing." At that time defendant observed two cracks in the foundation wall which were "maybe an eight or sixteenth" of an inch wide. He saw some cracked bricks on the exterior of the home. Such cracks are not unusual. Defendant marked the cracks so as to be able to determine whether they moved. He returned several times to observe the cracks. He did not fix them. On cross-examination defendant stated that he stopped returning to plaintiffs' home when plaintiffs sued him.

Plaintiff, Mr. Nisbet, testified: he first saw a crack in the foundation wall "approximately one month" after moving into the house. He called defendant who advised him that it was normal for a house to settle. After a few more months, more cracks appeared, and water began entering the home through the cracks. When defendant did not come out to the house, Nisbet dug around the foundation and tarred the cracks. This temporarily stopped the water seepage, but within several months water again entered the house through the cracks. Plaintiff identified several pictures of the cracks in the foundation and walls of the home.

Mr. Nisbet further testified that within one year of moving into the house, water and mud flooded into the basement and covered one-quarter of its surface. The basement floor began sinking in several places. These problems prevented plaintiffs from carrying out their plans to remodel the basement and to use it as a recreation room. Mice and insects entered the home through the cracks in the foundation. When advised of this condition, defendant came to the house and assured plaintiffs that he would correct the problems. He did not return again for almost a year and never corrected the defects. Thereafter doors and windows would not close; exterior walls began to crack and water continued to leak into the house. Plaintiffs could only use the basement to wash clothing and for storage.

Amelia Nisbet's testimony was substantially similar to her husband's.

Edward J. Sewers, a building contractor, testified that it would cost $22,500 to repair plaintiffs' home.

Thomas E. Holser, a real estate appraiser, estimated that the market value of plaintiffs' home, if in proper condition, was approximately $80,000 but because of the enumerated defects, its value was approximately $50,000.

R. Francis Staley, a consulting engineer called by defendant, testified that the cost of repair figure offered by Mr. Sewers was "excessive" but that Staley "couldn't really give an accurate figure" of the total cost of repairing the home. However, he then estimated that cost to be approximately $10,000.

In closing argument, plaintiffs' attorney asked the jury to award plaintiffs $22,500 for the cost of repairing the home (count I) and $2.50 per day for 2,888 days for their loss of use of the basement, for a total of $7,200 (count II). The jury returned verdicts of $22,200 on count I and $5,000 on count II.

Defendant argues that plaintiff failed to meet his burden of proof because "throughout the entire trial there was no evidence presented by plaintiff as to what caused the defects." Plaintiffs respond that the facts presented to the jury supported a reasonable inference that the defects were, in fact, caused by defendant. Moreover, plaintiffs argue that they were not required to prove the specific cause of the defects.

• 1, 2 The nature and extent of the defects in plaintiffs' home were described in detail. The defects were identified by plaintiffs' witnesses as being structural in nature. Causation, being a question of fact, may be established by, or inferred from, circumstantial evidence. (Walsh v. Dream Builders, Inc. (1970), 129 Ill. App.2d 280, 264 N.E.2d 247; Livingston Service Co. v. Big Wheels, Inc. (1981), 96 Ill. App.3d 591, 421 N.E.2d 1042.) In our opinion, the record discloses ...

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