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03/07/89 First National Bank of v. Ruth Dusold

March 7, 1989

FIRST NATIONAL BANK OF ELGIN, TRUSTEE, ET AL., PLAINTIFFS-APPELLEES

v.

RUTH DUSOLD, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

536 N.E.2d 100, 180 Ill. App. 3d 714, 129 Ill. Dec. 416 1989.IL.280

Appeal from the Circuit Court of Kane County; the Hon. Michael O'Brien, Judge, presiding.

APPELLATE Judges:

JUSTICE INGLIS delivered the opinion of the court. NASH and WOODWARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE INGLIS

Plaintiffs, First National Bank of Elgin as trustee under trust No. 3014 and Robert Litschewski, owners of residential real estate, brought this action for damages to the residence and various appliances and fixtures therein in breach of a warranty given by defendant, Ruth Dusold. Defendant filed a countercomplaint for alleged misrepresentation and fraud.

The trial court, without a jury, entered judgment for plaintiffs on the countercomplaint and judgment for plaintiffs on their complaint in the sum of $3,557.97 plus costs of $90.

As the parties are familiar with the history of this case and the testimony and exhibits admitted at trial, we need only set forth that evidence pertinent to resolving each of the issues raised.

In 1982, the parties entered into a contract for deed wherein plaintiffs agreed to sell and defendant agreed to buy 920 Rosewood, Carpentersville, by installment purchase. Defendant sued plaintiffs for failure to disclose defects. Plaintiffs filed a separate suit for failure of defendant to pay the installments due on the contract.

Plaintiffs and defendant entered into a settlement agreement on September 15, 1986. The agreement provided, in part, that defendant would quitclaim her interest in the premises to plaintiff Robert Litschewski. Defendant also warranted as follows:

"That all equipment and appliances to be conveyed, including but not limited to the following, are in operating condition (except that equipment relating to the swimming pool): all mechanical equipment; heating and cooling equipment, water heaters and softeners, septic, plumbing and electrical systems; kitchen equipment remaining with the premises, and any miscellaneous mechanical personal property. Dusold shall not be liable for any damages attributable or caused by a leaking roof, or electrical problems occasioned by water leaking through the roof."

The agreement further provided that defendant would move from the premises by October 1, 1986. The parties agreed to dismiss their respective lawsuits, and they were dismissed.

On October 31, 1986, plaintiffs filed this suit to recover for alleged damages to the premises. Plaintiffs' second amended complaint, upon which plaintiffs proceeded to trial, specifically alleged that defendant breached the warranties of the settlement agreement.

At trial, Litschewski testified that certain defects existed in the premises at the time he took possession and for which he incurred expenses in making repairs and replacing certain items. Litschewski testified that he took possession of the premises on October 1, 1986, and claimed damages: (1) two locks were broken, as well as the lock on the sliding glass door; (2) the garage door was separated from the framing by eight inches; (3) approximately a dozen tiles were missing in the master bath; (4) the shower door was hanging; (5) the faucets in the bathroom were leaking; (6) the medicine cabinet was hanging; (7) the linoleum was torn up in the bathroom; (8) the refrigerator would not work, was badly scratched, filthy, smelled, and "sounded like a John Deere tractor"; (9) two of the four units on the cook top did not work, and the top was badly scratched and stained; (10) the top shelf and diffuser from the dishwasher were missing, and the prongs on the bottom shelf were bent; (11) the fan on the range hood did not operate; (12) the hinges on the oven doors were bent, the oven doors would not ...


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