Broncata v. Timbercrest Estates, Inc.

• Citation: 241 N.E.2d 569,100 Ill.App.2d 49
• Decision Date: 30 September 1968
• Docket Number: Gen. No. 52628
• Parties: Anthony J. BRONCATA and Janice A. Broncata, Plaintiffs-Appellees, v. TIMBERCREST ESTATES, INC., a corporation, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 569

241 N.E.2d 569

100 Ill.App.2d 49

Anthony J. BRONCATA and Janice A. Broncata, Plaintiffs-Appellees, v. TIMBERCREST ESTATES, INC., a corporation, Defendant-Appellant.

Gen. No. 52628.

Appellate Court of Illinois, First District, First Division.

Sept. 30, 1968.

Equi, Farwell & Murray, Oak Park, for plaintiffs-appellees.

Shaffer, Seelig, Mandel & Shapiro, Chicago, for defendant-appellant.

BURMAN, Presiding Justice.

This is an action brought by Anthony Broncata and Janice A. Broncata, his wife, to recover damages from Timbercrest Estates, Inc., for breach of a construction contract. The plaintiffs allege that the defendant failed to perform in connection with the construction of plaintiffs' home. The case was submitted to the Court without a jury, and after a trial, judgment was entered for the plaintiffs and against the defendant in the amount of $1,145.00. Defendant appeals.

On August 4, 1965, the plaintiffs entered into a contract with the defendant for the purchase of a home to be built by the defendant, on a lot located at 105 Cedar Court, Schaumburg, Illinois. The price of the home was to be $24,015.00. The home purchased by plaintiffs was in a project of 140 homes constructed by defendant in Schaumburg. A home was constructed by the defendant on the property and plaintiffs moved in on December 13, 1965. The contract provided that the house was to be constructed 'in a good, substantial and workmanlike manner * * * according to specifications attached and included as part of the purchase contract and to be similar to Model #18 located at 17 Treebark Court, Schaumburg, Illinois.'

In their complaint, plaintiffs alleged that the defendant breached its contract with plaintiffs, specifying seventeen items, and prayed for $5,000.00 in damages. The defendant denied in its answer any failure on its part to comply with the contract and further alleged that the plaintiffs having moved into their home and accepting it without complaint, waived any and all objections relative to patent defects.

After a trial, the court found that plaintiffs were entitled to recover in the amounts specified for the following defects which correspond to the letters designated in the complaint:

(a) A pre-cast cement fireplace hearthstone was defective and has completely cracked through. $225.00

(d) The bedroom hardwood floors were improperly sanded, leaving unsightly marks and grooves. $70.00

(e) The dry wall taping was improperly performed leaving numerous unsightly marks and seams. $300.00

(i) Four feet of concrete foundation is exposed and unsightly and not covered by face brick. $400.00

(k) The crawl space was not vented. $24.00

(q) The contract driveway from garage to street was not installed. $126.00

Totalling $1,145.00

Initially, the defendant contends that the evidence was clearly insufficient to support the judgment for the plaintiffs on items a, d, e, and i. The defendant argues that in building contracts a literal compliance with the provisions of the particular contract is not necessary to a recovery by the contractor. 'It is sufficient that there is a substantial performance in good faith or that there is an honest and faithful performance of the contract in its material and substantial parts, with no willful departure from, or omission of, the essential points of the contract.' 12 Illinois Law and Practice, Contracts, § 402; Bloomington Hotel Co. v. Garthwait, 227 Ill. 613, 81 N.E. 714; Surety Development Corporation v. Grevas, 42 Ill.App.2d 268, 192 N.E.2d 145. This argument is without merit as applied to the case at bar. Even where the contractor shows substantial performance, the homeowner must be allowed a credit as compensation for the deficiencies existing in what he got as compared to what strict performance would have given him. Watson Lumber Company v. Guennewig, 79 Ill.App.2d 377, 226 N.E.2d 270. Thus, while substantial performance by the contractor will prevent the homeowner from avoiding his contract, the doctrine is irrelevant in a case where the homeowner has already paid the full purchase price and is suing for damages resulting from deficiencies in defendant contractor's performance.

The evidence shows that the plaintiff, Mrs. Broncata, made numerous complaints to the defendant about defective workmanship during the one year guarantee period. The defendant sent tradesmen to the house on numerous occasions in an effort to remedy the defects and satisfy the plaintiff. For example, the defendant had the hearthstone (item a.) in the fireplace replaced after receiving a complaint that it was cracked. Three weeks later Mrs. Broncata said it cracked again. There was conflicting testimony as to whether the cracks were caused by the alleged faulty construction of the fireplace, by excessive heat on the stone or by a heavy weight falling on the stone.

When Mrs. Broncata complained of gouges and scratches in the bedroom hardwood floors, the defendant sent a floor sander to her house. The floor sander got rid of the gouges, but the sanding left spots of slight discoloration (item d.).

There was conflicting testimony as to item e., involving dry wall taping and nail pop marks. The defendant's architect testified that the number of nail pops in the plaintiffs' house was less than normal for a house of that age and that nail popping is an inherent problem when dry wall construction is used. He said 'most people would live with it.' The architect also testified that a person walking above the ceiling or the presence of excessive moisture could have caused the dry wall tape to fall in the living room and the kitchen...