Appeal from the Circuit Court of Cook county; the Hon. HARRY
M. FISHER, Judge, presiding. Judgment reversed and cause
JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
Rehearing denied January 16, 1958.
This action was brought by Printing Machinery Maintenance, Inc. (hereafter referred to as plaintiff) against Carton Products Company (hereafter referred to as defendant) to recover judgment for the purchase price of a certain folding box manufacturing press, lift and other equipment. The plaintiff made a motion for summary judgment supported by affidavit. Counteraffidavits were filed, and after hearing, the court entered a summary judgment in favor of the plaintiff in the sum of $17,900, from which judgment this appeal is taken.
In the case as presented to the trial court two contracts were involved: one entered into on June 3, 1955 between the plaintiff and the defendant (hereafter referred to as the first contract), and another entered into on September 14, 1955 between the plaintiff and Hirsch Enterprises, Inc. (hereafter referred to as the second contract). The question to be resolved is as to whether or not there was a rescission of the first contract and a substitution of the second contract in the nature of a novation, and as to whether the court properly entered the summary judgment.
In order to facilitate following the facts before the court we will at the outset list the corporations and persons involved.
Printing Machinery Maintenance, Inc., plaintiff, is a New York corporation engaged in the business of manufacturing, rebuilding and selling machinery and equipment principally to the printing and engraving trades. Its secretary is Sidney Fishbane.
Carton Products Company, the defendant, is an Illinois corporation doing business in Chicago, Illinois. Edward J. Hirsch is its president.
Hirsch Enterprises, Inc., is an Illinois corporation doing business in Chicago, Illinois. Edward J. Hirsch is its president.
Franklin Folding Box Company is an Illinois corporation doing business in Chicago, Illinois. It had been owned by one C.G. Francke, and it was purchased from him by Edward J. Hirsch on September 1, 1955 as a going concern.
William Curtis Machinery Moving Company is located in Chicago and Charles Curtis is connected with it.
Cooper Jarrett, Inc., is a motor freight service company.
The first contract, which was entered into on June 3, 1955, is in the form of a typewritten letter directed to the plaintiff, attention of Sid Fishbane, and was signed by E.J. Hirsch, president of defendant. It constitutes an order for one Miehle two-color press at a price of $30,000 and two Miehle single-color presses at the price of $14,500 each, one of which presses is in controversy here and will hereafter be referred to as item A, all of which were to be delivered "FOB your plant, loaded on trucks." It further provides that for the erection of the presses the plaintiff will supply one man at no cost. The contract also has written into it in ink: "3 Berry Type Lifts @ 1,800.00-5,400.00" (one of which is also the subject matter of this suit and will hereafter be referred to as item B). The contract provided for the payment of $13,500 on acceptance, the balance of $45,500 was to be evidenced by notes. This contract was accepted by the plaintiff and bears the signature Sidney Fishbane, plaintiff's secretary. It should be noted that in the agreement the $5,400 listed as the price of the three Berry lifts is not part of the $59,000 payment provided and no other provision is made for the payment of that sum.
The second contract, a printed form filled by typewriting, dated September 14, 1955, which was attached to the answer, was between plaintiff and Hirsch Enterprises, Inc. and provided for the sale of one Miehle two color press for $30,000 and one Miehle single color press at $14,500, together with two Berry lifts for $1800 each. The total sum due plaintiff under this contract is $48,100, which was to be paid $13,500 upon the execution of the contract, and the balance of $34,600 was to be evidenced by notes.
On July 12, 1956 this suit was filed, predicated on the first contract (a copy of which was attached to the complaint), to recover the purchase price of item A in the amount of $14,500 and item B at a listed price of $1,800, together with certain other goods alleged to have been sold and delivered in June, 1955, at a price of $1,600, making a total ...