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12/30/68 HERBERT GELZUNAS AND REGINA M. GELZUNAS v.

December 30, 1968

HERBERT GELZUNAS AND REGINA M. GELZUNAS
v.
J.I. KISLAK MORTGAGE CORPORATION OF DELAWARE



The opinion of the court was delivered by: Bifferato

VINCENT A. BIFFERATO, ASSOCIATE JUDGE

UNREPORTED OPINION

On November 27, 1968, the Court, without a jury, heard the above captioned case which was a claim for breach of warranty.

The Plaintiffs purchased a house from Defendant sometime in October of 1966. At the time of settlement Defendant warranted that the basement would be repaired so as to be water free. After settlement Defendant made some attempts to remedy the water problem, but never completed the work necessary. After repeated demands the Plaintiffs had some of this work completed by an independent contractor. Suit was instituted to collect the costs paid to remedy part of the problem and to collect reasonable costs to remedy the balance not yet completed.

The Court finds that the Defendant breached its warranty by not completely alleviating the water problem in the basement of Plaintiffs' home as it had previously agreed to do. The Vice President of the Defendant corporation even testified that they had agreed to do anything that would alleviate this problem; however, they did not.

Testimony from the experts, including a New Castle County Building Inspector, was that a french drain should have been installed around the inside perimeter of the basement and on the outside perimeter of the basement to eliminate water seepage in addition to a proper grade around the house. This Defendant corporation did not do.

The Court finds that they are liable for the reasonable costs necessary to perform this work in conformity with the warranty presented at the time of settlement and confirmed by subsequent correspondence to the Plaintiffs and as testified to by the Vice President of the Defendant corporation.

The Court now turns to the problem of damages. The Court finds that the reasonable cost to repair and remedy the water condition in the interior of the basement of Plaintiffs' home is $600. This is based on the reasonable costs to install the french drain, repair the crock by the sump pump, replace eight sheets of dry wall, and the painting of two rooms in the basement.

Although there was testimony that the amount charged by the contractor to perform the necessary work on the exterior of Plaintiffs' home was excessive, the Court finds that considering all of the circumstances $2,850 paid by the Plaintiffs was reasonable since it included excavation around the perimeter of the house, patch work on the exterior walls, sealing the exterior walls, installation of a french drain around the exterior walls, and grading.

There has been a claim for loss of use and enjoyment of the basement of Plaintiffs' home. However, the Court finds that there has not been sufficient showing of any damages for loss of use and it would be entirely speculative to award damages for this portion of Plaintiffs' claim.

Therefore, the Court finds for Plaintiffs in the amount of $3,500 plus costs and interest. IT IS SO ORDERED.

19681230

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