Rozny v. Marnul

• Decision Date: 28 May 1969
• Docket Number: No. 40714,40714
• Citation: 250 N.E.2d 656,43 Ill.2d 54
• Parties: , 35 A.L.R.3d 487 Raymond A. ROZNY, Jr., et al., Appellants, v. John MARNUL, d/b/a Jens K. Doe Survey Service, Appellee.
• Court: Illinois Supreme Court

Page 656

250 N.E.2d 656

43 Ill.2d 54, 35 A.L.R.3d 487

Raymond A. ROZNY, Jr., et al., Appellants, v. John MARNUL, d/b/a Jens K. Doe Survey Service, Appellee.

No. 40714.

Supreme Court of Illinois.

May 28, 1969.

As Modified on Denial of Rehearing Sept. 23, 1969.

Westbrook, Jacobson & Brandvik, Chicago, for appellants (Lowell H. Jacobson and James A. Brandvik, Chicago, of counsel).

Tom L. Yates, Chicago, for appellee (Leif J. Locke and Carl E. Abrahamson, Chicago, of counsel).

UNDERWOOD, Justice.

Plaintiffs Raymond A. Rozny, Jr. and Catherine M. Rozny, husband and wife, purchased a house and lot which was described in a plat of an admittedly inaccurate survey prepared by defendant for S. & S. Builders, apparently a firm engaged in real-estate development. Plaintiffs brought this action for damages in the circuit court of Cook County and recovered a judgment entered on a jury verdict in the amount of $13,350. The defendant appealed and the First District Appellate Court reversed, one member dissenting. (83 Ill.App.2d 110, 227 N.E.2d 156.) We granted leave to appeal.

Defendant made the original, inaccurate 'spot' survey of this vacant lot on August 27, 1953. Subsequently, a house was erected on this lot, and on August 21, 1955, defendant issued a written location 'plat of survey' for the same property, this time apparently simply showing on the original plat the location of the building. Defendant did not know the person for whom he did this survey but believed it was for a builder, one Harold Nash, who had apparently purchased the property from S. & S. Builders subsequent to the original survey.

The city of Park Ridge issued a building permit to Nash on June 27, 1955. The Park Ridge Federal Savings and Loan Association made a loan commitment of $14,000, upon his application accompanied by a Torrens title certificate and the inaccurate survey of August 21, 1955. This is the only survey the association had in connection with the property, and without a survey, showing the house properly located, the association would not have financed the purchase. The mortgage covering the property in question was recorded August 25. Defendant testified that he discovered the August 21 survey was inaccurate and issued a corrected survey on August 27. He first stated it was regular procedure to send the corrected blueprints to whomever ordered the originals, and then testified he had no record of sending them and actually had no recollection of what occurred. The association never received the so-called corrected survey nor was it ever informed of its existence, nor is there in this record any showing that Nash or anyone else ever received a copy of the corrected survey.

Plaintiffs first saw the property in January, 1956, when the builder, Nash, showed it to them. They agreed to purchase the property and went to the association where one of its officers advised them there was an existing construction loan to Nash of $14,000 on the property, and that plaintiffs could finance the purchase by assuming that mortgage. All the documents concerning the property, including the incorrect survey which was then in the files of the Association, were reviewed by plaintiffs with this officer at the closing of the purchase in February.

In September, 1956, the existing driveway leading to the back of the house was extended and plaintiffs constructed a garage on the rear of the lot, relying upon an iron pipe in the backyard fence and a mark on the front sidewalk shown by the plat as the Indicia of their boundary limits. That plat shows an iron pipe at each of the back corners of the lot and a mark on the sidewalk two feet north of each of the front corners. Had these markers been correctly located, adequate space would have existed for the driveway. In fact, these markers had been placed in accordance with the inaccurate survey, and, as a result, portions of the existing driveway and the new driveway extended over the west lot line, and the west edge of the garage encroaches on the adjacent lot from 2 to 1 2 . Plaintiffs testified that the first time their attention was called to any possible encroachment or survey errors was about two years before the trial, which occurred in September, 1964.

The August 21 survey was signed by defendant and had his Illinois surveyor's seal affixed thereto. (He was a registered Illinois land surveyor. (Ill.Rev.Stat.1955, ch. 133, pars. 34 through 54.)) Printed on the survey plat was the following:

'IMPORTANT

'Before starting any excavating or building, excavators and builders are requested to compare all measurements and should any discrepancies be found, report same to our home office at once.

'This plat of survey carries our absolute guarantee for accuracy, and is issued subject to faithful carrying out of the above and foregoing instructions and conditions before any liability will be assumed on part of the Jens K. Doe Survey Service.

'State of Illinois

County of Cook §§

I, John Marnul, hereby certify that I have resurveyed and located the building on the property above described and that the plat above is a correct representation of said survey and location.

Chicago, August 21st, A.D. 1955.

Licensed Surveyor with

JENS K. DOE SURVEY SERVICE'

At the trial, Olaf Nilsen, a housemoving and shorting contractor, testified that the estimated cost of moving the house 2 feet and garage 6 feet and rehabilitating both would be $13,030.

The jury returned a verdict against defendant in the sum of $14,000, which was later reduced by a voluntary remittitur to $13,350, and judgment entered in that amount. The appellate court reversal was predicated on its opinion that the action was one of 'contract', the plaintiff was not in privity with the defendant and therefore could not maintain the action.

Plaintiffs contend that under what is or should be the law of this jurisdiction there are numerous theories of recovery available to a party not in privity of contract with the defendant, including (1) strict liability in tort, (2) implied warranty free of the privity requirement, (3) third-party beneficiary doctrine, (4) express warranty free of the privity requirement, and (5) tortious misrepresentation.

We have previously referred to the similarity between strict liability in tort and the various implied warranties in the products liability area. (Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182.) In Suvada, in accordance with section 402A of the Restatement (Second) of Torts, we imposed strict liability in tort on those who are sellers of products in a defective condition unreasonably dangerous to the user or consumer. There is nothing in this record indicating in what manner this survey could be found to be an unreasonably dangerous product within the language or rationale of section 402A. Nor need we determine what warranties the law might imply in the issuance of a plat, for the plaintiffs' claim (and our decision) is based upon the express representation of accuracy made by the defendant and appearing on the face of the plat. See Inglis v. American Motors Corp., 3 Ohio St.2d 132, 209 N.E.2d 583, 588.

While plaintiffs also invite us to treat this as a third-party beneficiary action and thus permit plaintiffs to sue as the beneficiaries of an express written warranty contract between defendant and the builder, Nash, it is clear that that contract was not made for the direct benefit of the plaintiffs as 'direct benefit' has been traditionally interpreted in connection with thirdparty beneficiary actions. (Cherry v. Aetna Casualty & Surety Co., 372 Ill. 534, 25 N.E.2d 11; Carson Pirie Scott & Co. v. Parrett, 346 Ill. 252, 257--258, 178 N.E. 498, 81 A.L.R. 1262.) Although we are aware of cases, (E.g. Rhodes Pharmacal Co. v. Continental Can Co., 72 Ill.App.2d 362, 219 N.E.2d 726; 50 New. Walden, Inc. v. Federal Ins. Co., 39 Misc.2d 460, 241 N.Y.S.2d 128) which evidence the increasing disregard for the privity requirement through continued expansion of the class of permissible plaintiffs under the third-party beneficiary doctrine, and realize that in factual situations similar to the instant case recovery has been granted under this theory (E.g., Vandewater & Lapp v. Sacks Buildres, Inc., 20 Misc.2d 677, 186 N.Y.S.2d 103) we believe the fundamental reasoning underlying the tortious misrepresentation theory more nearly accommodates this case than the expanded third-party beneficiary doctrine.

Plaintiffs also urge that recovery could be granted under a theory of express warranty free of the privity requirement. Indeed, there are many product liability cases granting recovery to a third person on the theory of express warranty to the consumer. (See Prosser, Law of Torts, 3d ed. ch. 19, § 97, at 684.) As pointed out by Dean Prosser, a leading case in developing the theory of express warranty to the consumer was 'Baxter v. Ford Motor Co., (168 Wash. 456, 12 P.2d 409, 15 P.2d 1118 (88 A.L.R. 521)) where the court at first found a warranty in disseminated literature stating that the glass in an automobile windshield was shatterproof, but on a second appeal (179 Wash. 123, 35 P.2d 1090) justified the recovery on the basis of strict liability for misrepresentation.' (Prosser, Misrepresentations and Third Persons, 19 Vand.L.Rev. 231, 238.) If the liability under this theory is to be called one of 'warranty' it must be noted that it is a different kind of warranty than the warranties between the immediate contracting parties. (See Restatement (Second) of Torts, § 402B, Comment (e) and § 402A, Comment (c).) Under this theory of express warranty to the consumer the basis of liability is in tort not in contract; therefore, the privity requirement traditionally used to define the scope of the liability in contract is not applicable. (Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 63, 377 P.2d 897, 907, 13 A.L.R.3d 1049.) The principles developed in those cases, wherein recovery was based upon 'direct...