Wells v. Minor

• Decision Date: 12 September 1991
• Docket Number: No. 4-90-0679,4-90-0679
• Citation: 578 N.E.2d 1337,161 Ill.Dec. 691,219 Ill.App.3d 32
• Parties: , 161 Ill.Dec. 691 Gary WELLS and Debra Wells, Plaintiffs-Appellees, v. Robert L. MINOR, Defendant-Third Party Plaintiff-Appellant (Jerry Suttles, d/b/a Suttles and Pratt Concrete Contractors, Third Party Defendant-Appellee).
• Court: United States Appellate Court of Illinois

Page 1337

578 N.E.2d 1337

219 Ill.App.3d 32, 161 Ill.Dec. 691

Gary WELLS and Debra Wells, Plaintiffs-Appellees, v. Robert L. MINOR, Defendant-Third Party Plaintiff-Appellant (Jerry Suttles, d/b/a Suttles and Pratt Concrete Contractors, Third Party Defendant-Appellee).

No. 4-90-0679.

Appellate Court of Illinois Fourth District.

Sept. 12, 1991.

Rehearing Denied Oct. 17, 1991.

Rammelkamp, Bradney, Dahman, Kuster, Keaton & Fritsche, P.C., Jacksonville, (Larry D. Kuster, Maria M. Gonzalez, of counsel), for defendant-third party plaintiff-appellant.

Herring and Bell Law Offices, Winchester, (Lois A. Bell, Richard E. Mann, of counsel), for Wells.

Bellatti, Fay, Bellatti & Beard, Jacksonville, (Daniel J. Beard, Timothy E. Ruppel, of counsel), for Suttles.

Presiding Justice LUND delivered the opinion of the court:

On May 4, 1990, a jury sitting in the circuit court of Scott County found for plaintiffs Gary and Debra Wells and against defendant Robert Minor (Minor) in a breach-of-contract action involving the building of a house. Third-party defendant Jerry Suttles (Suttles) had earlier prevailed against Minor in a summary-judgment proceeding. On September 4, 1990, the court entered judgment for the plaintiffs in the amount of $39,580. Minor now appeals.

On April 13, 1989, plaintiffs filed a complaint for breach of contract in the circuit court of Scott County. The complaint was eventually amended and alleged that (1) on September 13, 1988, they and Minor entered into a contract to build a house; (2) plaintiffs have performed their obligation by making the required monthly partial payments; (3) Minor breached the contract in that construction was not performed in a workmanlike manner and was unsatisfactory; and (4) Minor abandoned the project without completing the house. The complaint pursued four grounds of recovery: count I sought the cost of repairs of the defects; count II sought the diminution in value of the house; count III sought the costs of completion of the house; and count IV sought loss of use of the house.

On September 15, 1989, Minor filed an answer and a counterclaim against plaintiffs. In the counterclaim, he alleged he did not finish the project because plaintiffs breached by failing to make the required contract payment, and that he has always been ready, willing, and able to complete the project. Minor sought damages of $32,416.14, which is the difference between the contract price and what plaintiffs had already paid.

On December 22, 1989, the court gave Minor permission to file a third-party complaint against Suttles, which he did. On April 20, 1990, Suttles filed a motion for summary judgment, asserting that Minor waived any claim against him. The circuit court agreed and entered judgment for Suttles on May 1, 1990.

The jury trial commenced on May 2, 1990. The first witness was plaintiff Gary Wells. He stated that in September 1988 he entered into a contract with Minor for construction of a tri-level house with a basement under the ground-level portion. The contract required that the work be performed in a workmanlike manner and be completed within 90 days. The contract also provided that bills were to be supplied by the first day of the month, and that he was to make payment to Minor by the 10th day of each month.

The first bill he received was around November 2, 1988, in the amount of $7,136.50. This was for the foundation and basement floors. He paid it. The next bill he received was around December 5, 1988, in the amount of $24,978.36. This he also paid.

He first became concerned that there was a problem when the two-by-four framing was put up. He noted it just did not look right, and the walls looked crooked and bowed. He received the third bill around December 20, 1988, which was for $21,877.27. On December 30, 1988, he had a meeting with Minor at the building. They went through the house, and he told Minor his various concerns. Minor explained to him the foundation was out of square, and they tried to correct that when they built the frame on top of it.

Wells explained that the various problems with the house were as follows: (1) the floor in the garage was cracked into three pieces; (2) there was a water leak in the kitchen; (3) there was a water leak around the patio door; (4) the kitchen wall was out of plumb seven-eighths of an inch; (5) the wall between the kitchen and dining room was three inches off center; (6) the living room doorway was not square; (7) the wall between the stairs bowed out, as did the living room wall and several others; (8) various other walls are out of plumb and out of square; (9) the drywall was bulging on several walls; (10) the dirt beneath the patio had settled out; (11) the dirt under the sidewalk had settled out and the sidewalk was cracked; (12) two of the gabled ends of the house had bows in them; and (13) he was concerned that the siding should have lapped the other way. Minor refused to make the corrections and stopped work on the house. Wells did not pay the third bill.

Wells admitted he found the work generally acceptable as it proceeded. When he became concerned, he talked to Minor about the problems and asked to have them fixed. However, Minor stated he was not going to fix them and walked out. Wells obtained estimates on completion and repair of the house from three contractors, with Truman Short having the highest.

Dale Coffman was foreman of Minor's crew on plaintiffs' house. He explained that the house had an eight-foot basement and a four-foot basement. After these were poured, he measured them. The eight-foot basement was square. The four-foot basement was 1 1/2 inches out of square. A wall in the four-foot basement was out of plumb. Also, on one wall, the corner was one inch higher than the rest of it. He stated the fact that the foundation was out of square is not a problem if the main part of the house is kept square as it is being built.

Truman Short has worked as a residential home builder for 41 years. He is familiar with the cost of material and labor in Scott County. He examined plaintiffs' house to come up with an estimate to complete and repair the structure. His estimate was $29,929. He explained what items needed to be done to complete the house and what items needed repair. His examination revealed the foundation was out of square, and he stated he would not build on that foundation without a full renegotiation with the owner. If the foundation walls were out of plumb or had one side higher than the other he, as a builder, would have required them to be repoured. He can think of no way to repair the foundation without removing or replacing it. He also found that various aspects of the job were not performed in a workmanlike fashion.

Short admitted that concrete work can be difficult and sometimes can crack through no fault of anyone. He acknowledged it had been seven years since he had been a general contractor on a house. He also admitted that many times walls are slightly out of plumb, and this does not mean the work is unworkmanlike. However, he noted that in this case, they are more than slightly out of plumb.

John Rutherford is in the real estate business and has done appraisals for 15 years. The majority of his appraisals in recent years have been in Scott County. It was his opinion that if the house was completed and the defects fixed, it would have a fair market value of $62,500. If it was finished without fixing the defects, his opinion is that the value would be $42,000. It was his opinion the fair rental value of this house, if completed, would be between $400 and $450 per month.

Minor testified he is a builder, developer, and realtor, and that he has been involved in construction for more than 30 years. In September 1988 he signed a contract with Wells to build a tri-level home for $64,531. Construction began on September 27, 1988.

Suttles, the subcontractor, poured the foundation walls. The result was that one wall in the four-foot basement was out of plumb and out of square. Two other walls were out of plumb and one was out of level. Minor discovered this problem within a day or two of Suttles' work. Minor explained that he has built 13 homes using the same design, and that in every home the walls were not exactly plumb. It is acceptable to continue building on the walls, as long as they are not so out of plumb as to cause a life-threatening situation. It was his opinion that the condition of these walls are not life threatening, and that the house would be structurally sound if built on them. He explained the walls would be straightened out by using furring strips when finishing the house, which is common practice.

After the problems were discovered, he met Gary Wells at the house and explained the problems. At one meeting, they discussed the lack of plumbness and, at another, they discussed the fact that the house was out of square. He told Wells they could either get the foundation repoured or work around it. He told Wells it would take time to get Suttles back to repour. Wells stated that he wanted to be in the house by Christmas. Minor told him they would have a hard time making the walls plumb, and that the rooms could only be made square by using thicker walls, which would reduce the amount of room space. Wells opted to proceed with the house.

Around the first of November 1988, Minor sent a bill to the plaintiffs for $7,136.50. This was for the footings, foundation, and basement floor. They paid on time, and he then paid Suttles. Minor stated that, at times, if the homeowner is unhappy with the work, he has held back a portion of the subcontractor's pay as a settlement. If plaintiffs had complained about the foundation, he would not have paid Suttles until the matter was resolved. On November 28, 1988, a second bill was sent to plaintiffs. This was paid on December 8, 1988. He gave them his third bill around December 20, 1988.

Minor's discussions with plaintiffs...