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10/26/88 Peter Harmon Et Al., v. Charles Dawson Et Al.

October 26, 1988

PETER HARMON ET AL., PLAINTIFFS-APPELLANTS

v.

CHARLES DAWSON ET AL., DEFENDANTS-APPELLEES (JOSEPH W. MITCHELL ET AL., THIRD-PARTY PLAINTIFFS; DON CRAIG, THIRD-PARTY DEFENDANT)



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

530 N.E.2d 564, 175 Ill. App. 3d 846, 125 Ill. Dec. 406 1988.IL.1572

Appeal from the Circuit Court of Champaign County; the Hon. Harry E. Clem, Judge, presiding.

APPELLATE Judges:

JUSTICE LUND delivered the opinion of the court. KNECHT and SPITZ, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND

On March 8, 1988, in a case brought for damages arising out of a breach of contract by plaintiffs Peter and Cynthia Harmon, the circuit court of Champaign County entered a judgment dismissing the case at the end of plaintiffs' evidence in favor of defendants Charles Dawson, James Hansen, and Joseph and Theresa Mitchell. Plaintiffs appeal.

The genesis of this dispute is the agreement by plaintiffs to purchase a house belonging to the Mitchells. Dawson and Hansen are the real estate brokers involved. The original agreement provided plaintiffs would buy the Mitchell house, and the Mitchells would supply a refrigerator with it. Joseph Mitchell testified he envisioned purchasing a used refrigerator for $150.

Cynthia Harmon went through the house several times. She noticed some tiles were loose in the bathroom near the showerhead. She advised her lender and was told the Farmers Home Administration would not approve the loan unless the tiles were repaired. This information was relayed to the Mitchells through Dawson and Hansen. The Mitchells were aware the wall with the showerhead and soap dish had loose tiles and had contemplated having this fixed prior to the time the Harmons offered to purchase the house. The Mitchells agreed to repair the tiles if plaintiffs would forego the refrigerator, which was agreed to. Hansen indicated to the Mitchells that Dawson had arranged for someone to do the tile work. The Mitchells agreed to pay $150 of the work. The eventual bill was $217.15, with the realtors splitting the difference. The work was done several days before closing. Cynthia Harmon was in the house around that time and observed the workers putting the tile on the new wall, which appeared to be plywood.

During this time, James McClughen also went to the house. McClughen is employed by Tile Specialists and has been in the field for 28 years. His business had received a call to give an estimate for this job. When he arrived, the workmen were already repairing the wall. He noticed the wall was plywood, and they were gluing the tiles on that surface. He testified using plywood as a subsurface is contrary to his experience and the guidelines of the Tile Council of America. He explained that plywood is very susceptible to expansion and contraction with temperature changes, and movement cracks the grout.

The night before closing, plaintiffs went through the house again and did not express dissatisfaction. On July 3, they took possession. On July 10, the soap dish fell off the wall. Cynthia Harmon testified that she could observe from the date of closing that the tiles on the new wall were not installed as well as those on the other walls. She also observed the grout was cracked and has continued to do so. On August 3, McClughen gave an estimate of $487.50 for repairs, which involved taking the wall out and replacing it. The only obvious damage McClughen mentioned seeing was the soap dish.

At the close of plaintiffs' case, defendants moved for a directed verdict. However, it is apparent they were actually moving for a judgment in their favor at the close of plaintiffs' case pursuant to section 2-1110 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-1110). The court found the testimony failed to establish sufficient specificity to support the finding a contract existed. Further, it found that even if there were a contract, the Mitchells had complied with it. For these reasons, the court granted the motion, entering judgment for defendants and dismissing the case.

Plaintiffs contend the court erred in granting the motion. In Kokinis v. Kotrich (1980), 81 Ill. 2d 151, 154-55, 407 N.E.2d 43, 45, the supreme court made clear that in ruling on such a motion, the court must determine if a prima facie case exists. First, the court must determine if there is evidence presented by plaintiffs on each element. If there is not, then the court should enter judgment for defendants. If there is, then the court must weigh the evidence and determine if the prima facie case still exists. The first determination is a question of law, and the second is a question of fact. On appeal, this decision should not be reversed unless it is against the manifest weight of the evidence. We find the court's decision in granting defendants' motion erroneous, and we reverse.

In order for an oral contract to be binding and enforceable, its terms must be definite and certain. (Vandevier v. Mulay Plastics, Inc. (1985), 135 Ill. App. 3d 787, 791, 482 N.E.2d 377, 380.) It is well settled that in order for a contract to come into being there must be a meeting of the minds. (Richton v. Farina (1973), 14 Ill. App. 3d 697, 704, 303 N.E.2d 218, 223; Bailey v. Eater (1964), 53 Ill. App. 2d 37, 42, 202 N.E.2d 656, 659.) In the present case, such a meeting of the minds occurred.

The original sales contract provided that the Mitchells would supply a refrigerator with the house. When informed that the tile would have to be repaired, they indicated a willingness to have it done if plaintiffs gave up the refrigerator. Plaintiffs agreed, and a contract was created. Plaintiffs gave up their right to the refrigerator that was provided for in the original sales contract, and the Mitchells agreed to repair the loose tiles. It was also apparent both sides knew which loose tiles were involved. Mitchell stated it was the wall with the showerhead and soap dish. Harmon stated it was the wall with the ...


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