Hanavan v. Dye
| Decision Date | 06 April 1972 |
| Docket Number | No. 71--118,71--118 |
| Citation | 4 Ill.App.3d 576,281 N.E.2d 398 |
| Parties | Robert J. HANAVAN and Mary M. Hanavan, Plaintiffs-Appellees, v. Clarence W. DYE, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Herbert M. Spector, Rock Island, for defendant-appellant.
Robert A. Eagle, Rock Island, for plaintiffs-appellees.
An action was brought by the purchasers of a new house against the builder-vendor to recover a judgment for water damage caused by faulty construction. A counterclaim was filed for extra work done. The court found for the plaintiffs on their complaint, denied and dismissed the counterclaim, and entered judgment against the defendant for $588.30 and costs. The defendant has appealed.
The plaintiffs had bought the house in October of 1968 for $31,500.00 from the defendant, a building contractor, who had constructed it. Situated in Moline, Illinois, it was a split-level, and the lower level was completely exposed in the rear and partially exposed on the sides. The lower level included two bedrooms, a bathroom, a family room, and a recreation room. Two of the plaintiff's children used the lower level as their living quarters.
The plaintiffs moved into the house in November of 1968. In the spring of 1969 they began to find water in the lower level after rains. The problem became steadily worse through the summer and fall of 1969. By the spring of 1970, water was covering much of the lower level, all of which was carpeted, and was in places up to the plaintiffs' ankles. A neighbor observed water over the tennis shoes of one of the plaintiffs and over the first step of the stairway. Water entered the house about 25 times between May of 1967 and October of 1970.
The plaintiffs called the defendant every time it rained, and eventually began writing to him. He said he would take care of the water problem, but did not do so. The plaintiffs put extensions on the downspouts at the defendant's suggestion, but this did not correct the problem. In October of 1970 they had drain tile installed under the house, from the front wall to the back yard, and the water problem then ended.
Other difficulties were experienced with the house. The lower level was 10 or more degrees colder than the upper level. The thermostat was on the same wall as a heat outlet and would not function properly. Drafts could be felt. The plaintiffs complained to the defendant and he said he would take care of the heating problem, but no measures helped and the lower level remained cold.
The plaintiffs sought recovery, however, only for the water damage. They introduced proof of the cost of having the drain tile installed, renting a machine to suck up water, plastering damaged areas, and removing, cleaning, and relaying carpeting. The total was $588.30, the amount of the judgment awarded them.
The contractor who installed the drain tile beneath the house expressed his belief that tile should have been put beneath the house when it was built because the lower level was to be living space and because anyone in that area could have water problems. The defendant explained that he had not thought drain tile was necessary because the lower level was partially exposed and the foundation was not low in the ground. The tiling contractor commented that 'this is how water can fool you.'
Appealing from the judgment against him, the defendant contends that he built the house for himself and had no contract to build it for the plaintiffs; that he did not tell the plaintiffs the house had drain tile or give them any express warranties; that Moline's building code did not call for tile and it was not negligence for him not to have installed tile; and that the judgment was erroneous, therefore, because in Illinois there is no implied warranty of fitness, condition, or quality on the part of the vendor in the sale of a new dwelling house. He contends also that the plaintiffs failed to make proper proof of damages to support the judgment.
Whether there is an implied warranty of habitability where the vendor of a new house is also the builder has been considered in several Illinois cases. In Weck v. A:M Sunrise Construction Co., 36 Ill.App.2d 383, 184 N.E.2d 728, an implied warranty of this kind was recognized. In Coutrakon v. Adams, 39 Ill.App.2d 290, 188 N.E.2d 780, the existence of an implied warranty was denied. See criticism of the latter case in Krause, 'Products Liability and the Independent Contractor,' 1964 U. of Ill. Law Forum 748 at 759. In Ehard v. Pistakee Builders, Inc., 111 Ill.App.2d 227, 232, 250 N.E.2d 1, the issue was avoided. The Illinois Supreme Court in Coutrakon v. Adams, 31 Ill.2d 189, 201 N.E.2d 100, left the question unresolved, affirming the Appellate Court's decision on other grounds. Therefore, the question being at present unresolved, it is for us to decide whether to recognize an implied warranty of habitability on the sale of a new house by the builder as in Weck or to reject any implied warranty theory as in Coutrakon.
In a number of other states the courts have taken the position that a builder-vendor may be held liable for defective construction on the theory of breach of an implied warranty of habitability or quality. The cases are collected and discussed in 25 A.L.R.3d 383. An extensive review of the cases appears also in Jaeger, 'The Warranty of Habitability,' 47 Chicago-Kent Law Rev. 1, 27--52. The author of this article, finding that 'an implied warranty concept has been developed in an increasing number of decisions where the vendor of the new...
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