Witty v. Schramm
| Decision Date | 27 July 1978 |
| Docket Number | No. 78-109,78-109 |
| Citation | 379 N.E.2d 333,19 Ill.Dec. 669,62 Ill.App.3d 185 |
| Court | United States Appellate Court of Illinois |
| Parties | , 19 Ill.Dec. 669 Kenneth R. WITTY and Carol Witty, Plaintiffs-Appellants, v. Arthur R. SCHRAMM, Arthur W. Schimmelphenning, William E. Tunis and Kingdon & Naven, Inc., a corporation, Defendants-Appellees. |
David L. Cover, James S. Dixon, Peoria, for plaintiffs-appellants.
E. Wayne Clark, Frings, Bagley & Atherton, Pekin, for defendants-appellees.
This is an appeal from an order of the circuit court of Tazewell County which dismissed an action of the plaintiffs Witty against the defendants Schramm, Schimmelphenning and Tunis. The plaintiffs voluntarily dismissed an action which they had commenced against the defendant Kingdon & Naven, Inc. and hence this defendant is not involved in this appeal.
The plaintiffs brought an action against the defendants for both damages and rescission of a contract for the purchase of an unimproved parcel of land upon which the plaintiffs intended to erect a home. The plaintiffs alleged in their complaint as amended that after purchasing the property they excavated for a basement and footings for the intended home and that shortly thereafter water began bubbling and percolating to such an extent and in such a manner as to fill the entire excavated area. The plaintiffs alleged that the defendants as vendors of the parcel of land breached an implied warranty of fitness and habitability and that they were therefore entitled to damages and a rescission of the contract which they entered into for the purchase of the land.
The defendants filed a motion to dismiss the amended complaint of the plaintiffs on the grounds that it was ambiguous, that their action was barred by the Statute of Frauds, that there was a failure to comply with our Civil Practice Act (), that an action seeking relief in the form of both damages and rescission is inconsistent and improper and that there is no implied warranty of habitability as a matter of law as far as vacant lots are concerned. As we have previously stated, the trial court granted defendants' motion to dismiss and this appeal ensued.
It may well be that the amended complaint of the plaintiff should have been dismissed on the grounds of defective pleadings, however, we prefer to direct our attention to the paramount question as to whether or not an implied warranty of habitability applies to vacant lots of land so as to afford the purchasers of such lots relief for unplanned and uncontemplated expenses occasioned by unforeseen difficulties, i. e. subsurface water, when the purchasers attempt to utilize the lots for building site purposes.
The plaintiffs cite a number of cases in support of their argument that an implied warranty of habitability applies to vacant lots. We quarrel not with the law as set forth in such cases, however, we see no need to set them forth in the opinion since none of them are applicable to the issues presented in this appeal in that all of them were concerned with defects in constructed or partially constructed residences.
We know of no cases which have determined the question as to whether an implied warranty of habitability exists as to vacant lots. The parties to this appeal have conceded that the question is one of first impression in our state. In order to determine the question we find helpful the reasoning set forth in the case of Conyers v. Molloy (1977), 50 Ill.App.3d 17, 7 Ill.Dec. 695, 697, 364 N.E.2d 986, 988. In the case of Conyers the reviewing court stated:
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Conklin v. Hurley
...or long-term lease of land per se. Cook v. Salishan Properties, Inc., 279 Or. 333, 569 P.2d 1033 (1977); Witty v. Schramm, 62 Ill.App.3d 185, 19 Ill.Dec. 669, 379 N.E.2d 333 (1978); Jackson v. River Pines, 276 S.C. 29, 274 S.E.2d 912 (1981). While none of these cases involved land with the ......
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...maintain there should be no implied warranty associated with the sale of unimproved land. They cite Witty v. Schramm (1978), 62 Ill.App.3d 185, 19 Ill.Dec. 669, 379 N.E.2d 333, in which the plaintiffs purchased a vacant lot in a subdivision from the defendant. The plaintiffs, who had planne......
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