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Vernon v. Schuster

December 18, 1997

GEORGE VERNON ET AL., APPELLEES,
v.
JERRY SCHUSTER, D/B/A DIVERSEY HEATING AND PLUMBING, APPELLANT.



Chief Justice Freeman delivered the opinion of the court. Justice Bilandic, dissenting, Justices Miller and McMORROW join in this dissent.

The opinion of the court was delivered by: Freeman

Plaintiffs, George Vernon and Nancy Baker, brought an action in the circuit court of Cook County against defendant, Jerry Schuster, doing business as Diversey Heating and Plumbing. Plaintiffs alleged, inter alia, that defendant, a sole proprietorship, succeeded to the liability of a predecessor sole proprietorship for breach of contract and breach of warranty claims.

The circuit court dismissed those claims for failure to state a cause of action. The appellate court reversed and remanded. 285 Ill. App. 3d 857, 674 N.E.2d 915, 221 Ill. Dec. 122. We allowed defendant's petition for leave to appeal. 166 Ill. 2d R. 315(a). We now reverse the appellate court and remand the cause to the circuit court for further proceedings.

BACKGROUND

In determining whether to allow a motion to dismiss, a court must take as true all well-pled allegations of fact contained in the complaint and construe all reasonable inferences therefrom in favor of the plaintiff. Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 86, 220 Ill. Dec. 195, 672 N.E.2d 1207 (1996).

Plaintiffs' first-amended complaint alleged as follows. In November 1989, plaintiffs owned a building at 953 W. Webster Avenue in Chicago. James Schuster was a sole proprietor doing business as Diversey Heating and Plumbing (Diversey Heating). Diversey Heating was in the business of selling, installing, and servicing heating and plumbing systems.

Plaintiffs contracted with Diversey Heating to replace the boiler in their building. Diversey Heating warranted for 10 years portions of the boiler against cracking. In the course of installing the boiler, Diversey Heating employees sealed a valve with a pipe, which prevented the valve from draining water from the boiler. Diversey Heating instructed Baker that the only care the boiler would need was an annual preseason servicing prior to the heating season. Diversey also admonished plaintiffs not to drain water from the boiler because that could severely damage it.

From 1990 through 1992, plaintiffs paid Diversey Heating to inspect and service the boiler annually. In September or October 1993, Baker and James Schuster agreed that Diversey Heating would perform preseason service on the boiler.

On October 20, 1993, James Schuster died. Beginning on that date, Diversey Heating was a sole proprietorship owned and operated by defendant, Jerry Schuster, who is James Schuster's son.

In late October or early November 1993, Vernon asked Diversey Heating whether it had performed the preseason service on the boiler. Defendant informed Vernon of his father's death. Defendant told Vernon that Diversey Heating had not yet performed the preseason service on the boiler, but that it would service the boiler immediately.

In February 1994, the boiler stopped heating. Defendant inspected the boiler and told plaintiffs that it was totally broken, could not be repaired, and had to be replaced. Defendant told plaintiffs that Diversey Heating had no responsibility for the failure of the boiler and would not honor the warranty. After consulting a second heating contractor, plaintiffs paid $8,203 for a new boiler.

Count I of plaintiffs' four-count complaint alleged that defendant was negligent in installing and servicing the boiler and instructing plaintiffs on caring for the boiler. Count II alleged that defendant's promise in late October or early November 1993 to service the boiler was the basis of a contract, and that defendant breached that contract.

Count III alleged that Diversey Heating breached its warranty on the boiler, and count IV alleged that Diversey Heating breached its contract to install and service the boiler properly. In these counts, plaintiffs alleged:

"18. On Jim Schuster's death Jerry Schuster succeeded to the assets, rights and obligations of Diversey Heating and Plumbing and received the benefits of the good will associated ...


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