Appeal from the Circuit Court of Williamson County. No. 95-L-191. Honorable William H. Wilson, Judge, presiding.
The Honorable Justice Chapman delivered the opinion of the court. Rarick, J., concurs. Presiding Justice Welch, dissenting.
The opinion of the court was delivered by: Chapman
The Honorable Justice CHAPMAN delivered the opinion of the court:
Terry and Shirley Lanterman purchased Jerry and Sherry Edwards's home. The Lantermans then sued the Edwardses for damages relating to the replacement of the home heating and air-conditioning system. The trial court awarded the Lantermans $3,450. The Edwardses appeal. We affirm in part, reverse in part, and remand.
Three issues are raised on appeal. First, defendants argue that plaintiffs' pleadings do not conform to the proof in this case. Defendants contend that the trial court awarded damages based upon the extension of a warranty to the heating and air-conditioning unit. Defendants argue that the complaint makes only a bare allegation that the heating and air-conditioning unit was not working and that it alleges no duty or warranty as to the system.
Plaintiffs' complaint alleges that "plaintiffs discovered latent defects in the premises, being that *** the heating and air conditioning are not working but were specifically warranted by defendants to be in good working order." The complaint also alleges that defendants "falsely and fraudulently represented to plaintiffs that *** they were not aware of material defects in the heating, air conditioning or ventilating systems and in fact specifically warranted said system to be in good working order."
Given the allegations in the complaint, we cannot agree with defendants that the complaint fails to allege any warranty as to the heating and air-conditioning system. In addition, we note that defendants waived this argument as they never objected to, or raised below, any defect in the pleadings. In fact, defendants defended upon the issues of the existence of the warranties and the condition of the heating and air-conditioning unit. All objections to pleadings shall be raised by motion. 735 ILCS 5/2-615 (West 1996). Any defects in pleadings, either in form or substance, not objected to in the trial court are waived on appeal. Geleto v. Giglietti, 40 Ill. App. 3d 226, 228, 352 N.E.2d 1, 3 (1976).
Defendants next argue that the trial court erred in finding that the contract warranting the condition of the heating and air-conditioning unit did not merge into the deed.
The real estate sales agreement entered into between the parties provided as follows:
"CONDITION OF PREMISES. Buyers acknowledge they have inspected the real estate and the improvements thereon, they are acquainted with the condition thereof and they accept the same in ***
X (b) As-is condition except Sellers warrant the plumbing, heating, electrical and air conditioning systems to be in normal working condition on date of possession. Where paragraph (b) is selected, the paragraph entitled "Termite inspection" shall apply. Buyers shall have the right to inspect the property during the 48-hour period immediately prior to closing." (Emphasis added.)
The trial court's order provides in pertinent part:
"I find that this clause was incidental to the main purpose of the contract (conveyance of real estate). It was a collateral undertaking[,] and the defendants could not be in breach of it until the 'date of possession', which by the contracts [ sic ] terms was immediately upon ...