Opinion
No. 70-97 Affirmed and remanded.
December 2, 1971.
APPEAL from the Circuit Court of St. Clair County; the Hon. JOSEPH E. FLEMING, Judge, presiding.
Cohn, Korein, Kunin and Brennan, of East St. Louis, (H. Carl Runge, Jr., of counsel,) for appellant.
Meyer Meyer, of Belleville, (Robert F. Kaucher, of counsel,) for appellee.
This is an appeal from a judgment rendered against both the maker and the endorser of notes given by a homeowner for home improvement work, and from a judgment rendered in favor of the homeowner on a counterclaim for defective work. The appellant is the payee-endorser of the notes who had performed the home improvement work and the appellee is the holder of the notes, the plaintiff below.
Defendant Solmica agreed to perform certain remodeling work on the home of defendant Bynum, in consideration for which Bynum executed two promissory notes, payable to the order of Solmica. Brazzell, one of Solmica's agents, obtained a signed completion slip from Bynum through fraud before the work had in fact been completed. The notes, accompanied by the signed completion slip, were negotiated to plaintiff. They were endorsed "without recourse, except that endorser has furnished and installed all articles and materials and has fully completed all work which constitutes the consideration for which this note was executed." It is undisputed that plaintiff took the notes as a holder in due course.
Solmica's performance being incomplete and unsatisfactory, Bynum withheld all payment from both Solmica and plaintiff. Plaintiff brought an action against both defendants for payment of the notes in the amount of their face value, $6,900, plus interest and attorneys' fees. Defendant Bynum cross-claimed, arguing partial failure of consideration by Solmica. Evidence of the partial failure of consideration was substantial, but absent from the record is any appraisal of the amount by which the consideration failed. Judgment was entered for plaintiff and against both defendants in the amount of $4,465 which represented the consideration paid by plaintiff for the notes, plus $2,245 in interest and attorneys' fees. In addition, Bynum was awarded a set-off against Solmica in the amount of $2,995 plus costs of the action.
Defendant Solmica's appeal charges that plaintiff's award was erroneously in excess of the contract price, and that the amount of the set-off was not proved and has no basis on the record.
• 1 Defendant erroneously assumes that plaintiff's judgment was based on the underlying remodeling contract. Plaintiff's award was based on the negotiable notes. Defendant, having breached its express warranty to plaintiff that its performance of the remodeling contract was complete and adequate, should be liable to the plaintiff for at least the amount of consideration paid by plaintiff in reliance on that warranty, plus interest and costs. This being the amount of plaintiff's award, defendant cannot argue that it was excessive.
• 2 We must agree with defendant that the amount of set-off is unproved and has an insufficient basis in the record. Although there is substantial and uncontradicted evidence that Solmica's performance fell far short of being adequate and complete, the amount of damages must be proved with a reasonable certainty. Meyer v. Buckman (1955), 7 Ill. App.2d 385, 129 N.E.2d 603; Chicago Coliseum Club v. Dempsey (1932), 265 Ill. App. 542.
Affirmed as to plaintiff's judgment and the determination of liability on the cross-claim. Remanded for a hearing on amount of damages on the cross-claim.
Affirmed and remanded.