Hefler v. Wright

• Decision Date: 09 February 1984
• Docket Number: No. 5-83-0357,5-83-0357
• Citation: 77 Ill.Dec. 259,460 N.E.2d 118,121 Ill.App.3d 739
• Parties: , 77 Ill.Dec. 259 Gary L. HEFLER and Sharon Hefler, Plaintiffs-Appellees, v. Bill WRIGHT, d/b/a Bill Wright Construction, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 118

460 N.E.2d 118

121 Ill.App.3d 739, 77 Ill.Dec. 259

Gary L. HEFLER and Sharon Hefler, Plaintiffs-Appellees, v. Bill WRIGHT, d/b/a Bill Wright Construction, Defendant-Appellant.

No. 5-83-0357.

Appellate Court of Illinois Fifth District.

Feb. 9, 1984.

Earl S. Hendricks, Jr., Murphysboro, for defendant-appellant.

J. Phil Gilbert, Gilbert & Gilbert, Carbondale, for plaintiffs-appellees.

WELCH, Presiding Justice:

Plaintiffs Gary and Sharon Hefler brought suit against defendant Bill Wright, doing business as Bill Wright Construction, alleging that he built their house in an unworkmanlike manner and breached an implied warranty of fitness or habitability. Specifically, they complained that there were cracks in the wall and ceiling, certain trusses were loose, the soffit was separated from the kitchen cabinets, and the dry wall and the center beam of the house were not properly installed. Subsequently, the plaintiffs sought to amend their complaint to add as a defendant Reasor Corporation (Reasor), which manufactured the home package used to construct plaintiffs' dwelling. The trial court denied the motion to add Reasor as a defendant. Judgment was entered in favor of the plaintiffs on May 4, 1983, in the amount of $5,718 for breach of the implied warranty of habitability. The defendant appeals and raises two arguments. First, he asserts that the trial court should have allowed plaintiffs to amend their complaint to add the manufacturer of the packaged home as a defendant. Second, he argues that he is not a "builder-vendor" and should not be liable to the homeowner under an implied warranty of habitability. We affirm.

In denying plaintiffs' motion to add Reasor as a defendant, the trial court ruled that the proposed amendment was legally insufficient to state a cause of action because the terms of any contract between the plaintiffs and Reasor were not attached or recited. On appeal, the defendant argues that the trial court erred in denying plaintiffs' motion since the amended complaint sought relief under a products liability theory and not a contract theory. The defendant relies on Maxfield v. Simmons (1983), 96 Ill.2d 81, 70 Ill.Dec. 236, 449 N.E.2d 110. In Maxfield, the builder sought indemnity by filing a third-party complaint against the manufacturer of roof trusses, after a homeowner brought suit against him. The builder's complaint alleged tortious conduct on the part of the manufacturer of the trusses, which was held sufficient to give rise to the right of indemnification and contribution. Accordingly, the third-party complaint was held to state a cause of action. Under Maxfield v. Simmons, the plaintiffs' motion to amend their pleadings was sufficient to state a cause of action against Reasor because it alleged tortious conduct by the corporation, despite the fact that the terms of a contract were not attached or recited. Nonetheless, the trial court's failure to add Reasor as a defendant did not prejudice the defendant. If the defendant wishes to seek indemnity from Reasor, he may file a third party action. (See generally Maxfield v. Simmons (1982), 107 Ill.App.3d 341, 347, 63 Ill.Dec. 190, 194, 437 N.E.2d 839, 843 (Welch, J., dissenting).) Absent any error which was substantially prejudicial and affected the outcome of the trial, we must deem any error harmless. Holsapple v. Country Mutual Ins. Co. (1983), 112 Ill.App.3d 512, 68 Ill.Dec. 265, 445 N.E.2d 909; Stromquist v. Burlington Northern, Inc. (1983), 112 Ill.App.3d 37, 67 Ill.Dec. 629, 444 N.E.2d 1113.

Next, we consider defendant's argument that he is not a builder-vendor and therefore cannot be liable under an implied warranty of habitability. He asserts that he is not a builder-vendor because he merely erected a house manufactured by another company and because he built the house on land the plaintiffs already owned, not land he sold to them with the house. Neither argument is persuasive.

The purpose of the warranty of habitability is to protect purchasers of new houses when latent defects are discovered. (Petersen v. Hubschman Constr. Co. (1979), 76 Ill.2d 31, 27 Ill.Dec. 746, 389 N.E.2d 1154.) The supreme court pointed out in Petersen that the primary reason for the warranty is " * * * because of the unusual dependent relationship of the vendee to the vendor." (Petersen v. Hubschman Constr. Co. (1979), 76 Ill.2d 31, 41, 27 Ill.Dec. 746, 750, 389 N.E.2d 1154, 1158.) In many cases, the purchase of a home is the most important transaction of a lifetime and it would be unjust to apply the rule of caveat emptor to an inexperienced home buyer in favor of a builder who is in the business of building and selling homes (See generally Annot. 25 A.L.R.3d 383 (1969)). The supreme court has stated that the implied warranty does not arise as a result of the execution of the deed, but arises by virtue of the execution of the agreement between the vendor and the vendee. The warranty is an implied covenant that the house built and conveyed by the builder-vendor is reasonably suited for its intended use. Petersen v. Hubschman Constr. Co.

Since Petersen, the warranty of habitability has been applied in a broad fashion to protect home buyers. For example, in Tassan v. United...