Coutrakon v. Adams

• Citation: 201 N.E.2d 100,31 Ill.2d 189
• Decision Date: 20 May 1964
• Docket Number: No. 37899,37899
• Parties: Basil H. COUTRAKON et al., Appellants, v. J. Fred ADAMS et al., Appellees.
• Court: Supreme Court of Illinois

Page 100

201 N.E.2d 100

31 Ill.2d 189

Basil H. COUTRAKON et al., Appellants, v. J. Fred ADAMS et al., Appellees.

No. 37899.

Supreme Court of Illinois.

May 20, 1964.

Rehearing Denied Sept. 25, 1964.

Coutrakon & Coutrakon, Springfield, for appellant.

Londrigan & Londrigan, Springfield (Brown, Hay & Stephens, and Elizabeth G. Frazee, Springfield, of counsel), for appellee.

HOUSE, Justice.

Plaintiffs purchased a home from the defendant-builders. Subsequently fires occurred on January 6 and 10, 1954, the latter resulting in practically a complete loss. Judgment was entered on two jury verdicts for $23,902.08 and on appeal the Appellate Court, Third District, reversed. (Coutrakon v. Adams, 39 Ill.App.2d 290, 188 N.E.2d 780.) We granted leave to appeal because the case appeared to involve the question of whether there is an implied warranty that a house not wholly completed at the time of sale must be safe and fit for human habitation.

Defendants, who are contractors, pooled their efforts and commenced building the house in the fall of 1952. Plaintiffs went through the house during construction several times in the spring of 1953. They entered into a contract to purchase on June 9, 1953, in which defendants agreed to complete porch screening, laying and finishing flooring, installation of electricity and fixtures, and painting. These items were completed during the month and the deed delivered upon payment of the purchase price. Plaintiffs took possession on July 3, 1953. The heat was turned on in September 1953 and maintained thereafter.

Plaintiffs point out that this court has never been asked to decide whether there is an implied warranty in the sale of an incomplete house and maintain that it is necessary to a decision of this case to pass upon that question. The Appellate Court recognized the lack of proof as to the cause of the fires but stated that it preferred to examine the broad legal question of implied warranty. While this is an interesting problem, its determination is not necessary to a decision here. This case can and should be decided upon the basis that the evidence does not support the verdicts.

The cause of the fires was alleged faulty installation of the radiant heating unit, which was a gas-fired boiler described at some length in the Appellate Court opinion. It is contended that the compartment containing the burners of the unit, open at the top and bottom, was mounted directly on the plywood flooring. However, no proof was made by the workmen hired by plaintiffs after the first small fire, or the firemen called to that fire, that they found anything amiss with the boiler installation or that the fire started within or under the boiler unit. It seems inconceivable that if conditions were as contended by plaintiffs that the workmen and firemen would have failed to note them. None of them testified that the floor under...