Brownell v. Quinn

• Decision Date: 30 March 1964
• Docket Number: Gen. No. 49312
• Citation: 197 N.E.2d 721,47 Ill.App.2d 206
• Court: United States Appellate Court of Illinois
• Parties: Jayne H. BROWNELL, Ellen Hamilton and Mary B. Hamilton, Plaintiffs, v. Howard B. QUINN and Quinn Home Builders, Inc., a Corporation, Defendants. QUINN HOME BUILDERS, INC., Defendant-Third Party Plaintiff-Appellee, v. Fred ROZEMA, d/b/a Rozema Cement Construction Co., Third-Party Defendant-Appellant.

Page 721

197 N.E.2d 721

47 Ill.App.2d 206

Jayne H. BROWNELL, Ellen Hamilton and Mary B. Hamilton, Plaintiffs, v. Howard B. QUINN and Quinn Home Builders, Inc., a

Corporation, Defendants.

QUINN HOME BUILDERS, INC., Defendant-Third Party Plaintiff-Appellee, v. Fred ROZEMA, d/b/a Rozema Cement Construction Co.,

Third-Party Defendant-Appellant.

Gen. No. 49312.

Appellate Court of Illinois, First District, First Division.

March 30, 1964.

Robert Irmiger, Chicago, for defendant, third-party plaintiff-appellee.

Herbert M. Wetzel and A. M. Horwitz, Chicago, Edward F. Zahour, Chicago, of counsel, for third-party defendant-appellant.

KLUCZYNSKI, Justice.

This appeal was brought by the third party defendant as a result of a judgment by the trial court in favor of plaintiffs, in the amount of $765 and in favor of the defendant, for the same amount, as against the third party defendant.

Suit was filed November 14, 1960 by Jayne Brownell, Ellen E. Hamilton, and Mary B. Hamilton against Howard B. Quinn (subsequently dismissed from suit as defendant by motion of plaintiffs) and Quinn Home Builders, Inc., for breach of a real estate sales contract entered into by plaintiffs, as joint tenants, with Quinn on November 3, 1956. The terms of the agreement provided for the sale of real estate and a building which was to be built thereon in a 'neat and workmanlike' manner, complete with garage and driveway, according to specifications. Plaintiffs alleged that defendant was paid in full, but that defendant had failed to complete construction of the improvements in a good and workmanlike manner; viz: that defendant failed to furnish proper material and skilled workmanship in the construction of a driveway, front walk and concrete exterior.

In its answer Quinn admitted entering into the contract with plaintiffs, but denied failure to complete its obligations thereunder. Quinn then made Fred Rozema, d/b/a Rozema Cement Construction Co., a third party defendant, alleging that Rozema, as subcontractor, was employed to do the cement work on plaintiffs' building; that the defects in construction alleged by plaintiffs were caused solely by Rozema, and that Rozema would be liable to Quinn for the full amount of plaintiffs' claim. In its third party complaint Quinn adopted in toto the real estate sale contract entered into by it with plaintiffs.

At the trial Jayne Brownell testified to the defective character of the work. Plaintiffs called George Dichman, a cement contractor, who gave evidence as to the cost of repairing the defective work. Thereafter plaintiffs rested. In defense, Quinn called Rozema as an adverse witness under Sec. 60 of the Civil Practice Act, Rozema testified that he was hired by, and did the cement work on plaintiffs' property for, Quinn. No other evidence was offered by Quinn or Rozema.

Upon the evidence the court found that Quinn had hired Fred Rozema, and that the latter was responsible for the faulty and defective cement work on the improvements. Judgment was entered in favor of the plaintiffs, and against Quinn, in the sum of $765. This judgment was satisfied. The court also entered judgment against the third party defendant, Rozema, and in favor of Quinn, the third party plaintiff, in the sum of $765.

It is the theory of Rozema that violation of an express real estate sales contract to construct a building in a workmanlike manner, is not actionable, where a subsequent deed conveying title was pursuant to and in full execution of the contract, and merged the provisions of that contract therein. Therefore, he argues, since no cause of action could be maintained by plaintiffs because of the merger of the contract into a deed, he could not be properly joined by Quinn.

The real estate sales contract contemplated both conveyance of a warranty deed to certain real estate, upon full payment of the purchase price, and construction of a building thereon, to be done by Quinn in a 'neat and workmanlike' manner. The deed was tendered to plaintiffs and was duly recorded by them in April 1957. While the general rule is that a deed in full execution of a contract for sale of land merges the provisions of the contract therein, the rule is subject to exception, namely, that where there are provisions in the contract which delivery of the deed does not fulfill, the contract is not merged in the deed as to such provisions and remains open for performance of such terms. Chicago Title and Trust Co. v. Wabash-Randolph Corp., 384 Ill. 78, 51 N.E.2d 132 (1943); Biewer v. Mueller, 254 Ill. 315, 98 N.E. 548 (1912); and Weck v. A:M Sunrise Construction Co., 36 Ill.App.2d 383, 184 N.E.2d 728 (1962), and cases cited therein.

The deed did not fulfill the entire contract, and was certainly not a performance of that part of the contract which called for construction of the building. Since conveyance of the property was not the entire subject matter of the contract, the terms thereof remained in force until full performance. We hold here, then, that the deed and payment of the purchase price could not effect a merger of the agreement to construct a house according to specifications upon the property sold, as construction of plaintiffs' building, in a 'neat and workmanlike' manner, is a collateral undertaking to, and not part of the main purpose of, the conveyance of the real estate. As the...