Appeal from the Circuit Court of Cook County; the Hon. BEN
SCHWARTZ, Judge, presiding. Reversed and remanded with
MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
Rehearing denied July 19, 1966.
This is an alleged breach of implied warranty case. Plaintiff, Rhodes Pharmacal Company, Inc., is in the business of marketing various drug, cosmetic and hair beauty products. Plaintiff seeks to recover damages which resulted from leakage of aerosol cans purchased by plaintiff from defendant, Pittsburgh Railways Company, and manufactured by defendant, Continental Can Company, Inc. No personal injury is involved.
Plaintiff filed a 3-count amended complaint. Count II was directed against Continental Can, as manufacturer of the defective cans. The trial court granted the motion of Continental Can for judgment on the grounds that the complaint as against defendant Continental Can was substantially insufficient in law, in that it failed "to set forth any contractual relationship between the plaintiff and this defendant," or "any legally recognizable basis or relationship between the plaintiff and this defendant, to support any warranties running from this defendant to the plaintiff." The trial court further found "there is no just reason for delaying enforcement or appeal of the order in accordance with Section 50 (2) of the Civil Practice Act."
In substance, Count I of the amended complaint shows that plaintiff markets a hair waving and setting lotion, packaged and distributed under its trademark "Perform." In April 1960, plaintiff was informed by G. Barr, Inc., an Illinois corporation, whose assets were purchased by defendant Pittsburgh on April 9, 1962, that a gas propellant had been developed which would react compatibly with the setting solution of Perform. In June 1960, after laboratory tests had been performed, Barr informed plaintiff that these tests had revealed that the high water content of Perform caused unlined cans to rust and corrode, resulting in a discoloration and adulteration of the Perform solution.
Representatives of Barr informed plaintiff that the foregoing discoloration and adulteration could be eliminated and accordingly expressly warranted to plaintiff the following:
(a) That the use of rustproof linings in the cans would prevent discoloration and adulteration of the Perform solution;
(b) That such cans with rustproof linings were available;
(c) That these linings had been tested by Barr for their compatibility with the Perform solution;
(d) That such cans had been manufactured by defendant Continental;
(e) That its laboratory tests had demonstrated conclusively that Perform could be satisfactorily and merchantably packaged, stored and distributed in aerosol cans with rustproof linings;
(f) That the "shelf life" of Perform in the foregoing rustproof cans during which it would remain packed without leaking, exploding, evaporating was no less than three years.
In reliance upon the alleged express warranties, plaintiff instructed Barr to package and distribute Perform in rustproof lined cans to be manufactured and acquired from defendant Continental.
Plaintiff further alleges that in July 1960, representatives of plaintiff met with representatives of defendant Continental for the purpose of deciding upon the design and format of the advertising matter to be imprinted upon the aerosol can, and in October 1960, Barr began packaging and distributing Perform in aerosol cans for ...