Appeal from the Municipal Court of Cook County; the Hon.
CHARLES P. HORAN, Judge, presiding. Reversed and remanded with
MR. PRESIDING JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
This is an appeal from the entry of an order by the Circuit Court of Cook County, First Municipal District, on June 11, 1965, finding for the plaintiff upon the issues joined on plaintiff's complaint, and assessing the plaintiff's damages at the sum of $8,404.80; further finding for the defendant on the issues joined on the defendant's counterclaim, and assessing defendant's damages at the sum of $12,989.88; and judgment order against plaintiff and in favor of defendant in the sum of $4,585.08 and costs.
On September 12, 1961, the plaintiff, Wilke Metal Products, Inc. (hereafter referred to as Wilke), filed its complaint to recover an unpaid balance of $8,404.80 for windows sold and delivered to the defendant, David Architectural Metals (hereafter referred to as David). The complaint further alleged that there was due interest at 5 percent per annum caused by the vexatious delay of the defendant in making payment to plaintiff.
On October 19, 1961, David filed its defense and counterclaim, setting out as defense that Wilke had failed to fabricate and furnish said windows in accordance with the plans, specifications and architectural drawings agreed upon. David's counterclaim alleged that subsequent to the installation of said windows it was determined that the windows were improperly fabricated and were not in accordance with plans, specifications and architectural drawings; that David made demand upon Wilke to correct the defect, but Wilke refused to do so, and David was required to furnish labor and materials in order to make the corrections in the windows; and that David expended the sum of $13,649.20 for such labor and materials.
On February 1, 1962, Wilke filed its reply to the defense and counterclaim, denying the allegations of defendant's defense and defendant's counterclaim. The reply further stated that any expenditures by David were not caused by any alleged defects in fabrication by Wilke. The case was tried by the court without a jury, and on September 26, 1963, the court entered judgment in favor of David and against Wilke in the sum of $4,585.08. From that judgment this appeal is taken.
On February 13, 1964, Wilke filed its notice of motion for leave to file its amended reply to the defense and counterclaim to conform the pleading to the proof, which motion was denied by the court on the following day.
On August 20, 1959, Wilke and David entered into an agreement whereby Wilke agreed to manufacture 4,464 aluminum window frames and screens and to sell them to David for a total price of $85,000. On April 8, 1960, a supplementary agreement was signed by the parties modifying the agreement of August 20, 1959, providing that "Wilke agrees to furnish the Windows required for the University Apartments, 55th Street and Dorchester Avenue, Chicago, Illinois, in strict accordance with Architectural Drawing `WINDOW-SKETCH' dated March 25, 1960 and revised March 26, 1960, except that the horizontal leg of the head and jamb sections may be set back 1/16""; that Wilke agreed to furnish a minimum of 50 window frames by April 25, 1960, and a minimum of 50 window frames per day thereafter. To expedite delivery the parties agreed that the first 500 window frames should be made by the welding process in accordance with a shop drawing made by plaintiff on March 31, 1960. A note on the drawing contained the following statement: "1/4" X 3/4" recessed holes are used to prevent interference with anchor screw heads." This was drawn for the production of the welded units.
The first 500 window frames delivered to David were examined by David's agents and found to conform to the specifications. The remainder of almost 4,000 window frames were made by the extrusion process in accordance with the "Window-Sketch" dated March 25, 1960, and revised March 26, 1960.
All of the window frames were delivered to David and were installed by David in the buildings known as the University Apartments. Fasteners for the installation were selected and purchased by David. The first windows were installed in September 1960; in March 1961, after approximately 90 percent had been installed, David notified Wilke that the glass stops in many of the windows were popping out. David then proceeded to remedy the situation by having the glass removed by Hamilton Glass Company in order that David's men could put holes in the glass stops so that the stops could pass over the interfering screw heads, then Hamilton's men put the glass back in and reputtied the windows. The guess of the witness Hammerquist was that this corrective work was done on 50 to 70 percent of the more than 4,000 window frames delivered by Wilke. The total cost to David was $12,989.88, which included wages to its own men, payment to Hamilton Glass for glaziers' time, to Economy Window Cleaning Company for cleaning repaired windows, and to Ace Hardware for cleaning materials. Wilke refused to accept any responsibility for any portion of the cost of any corrective measure, stating in its letter of March 20, 1961, to David:
"Your contract with Wilke Metal Products called for Windows only which we furnished per approved Shop Drawings. Fastening Screws were selected and installed by your personel [sic] and Glass and Glazing was furnished by others than Wilke Metal Products and, as a great number of stops are acceptable, we cannot understand why you request backcharges for necessary corrections from Wilke and not your Glazing Contractor who certainly should have notified you long prior to completion of glazing, of the Screw Head-Glazing Bead interference."
Wilke's first contention is that David's notice of the alleged breach of warranty came too late to hold the seller for damages for the alleged breach of warranty, since the buyer made no inspection, nor did he give notice until approximately six months after delivery of the window frames. Section 49 of the Uniform Sales Act (Ill Rev Stats 1961, c 121 1/2, § 49), which was in effect at the time of this transaction, provides:
"In the absence of express or implied agreement of the parties, acceptance of the goods by the buyer shall not discharge the seller from liability in damages or other legal remedy for breach of any promise or warranty in the contract to sell or the sale. But, if, after acceptance of the goods, the buyer fail to give notice to the seller of the breach of any promise or warranty within a reasonable time after the buyer knows, or ought to know of such breach, the seller shall not be liable therefor."
The defects which David alleges to exist in the extruded frames are that the holes were not recessed and were placed in such a position as to interfere with the stop. However, the evidence shows that the extruded frames were to be manufactured in accordance with the "Window-Sketch" dated March 25, revised March 26. In examining that drawing, this court cannot find any notation stating that the holes were to be recessed. Therefore, the only defect with which we are concerned is the allegation of the improper alignment of the holes.
In the brief filed in this court David states that the holes should have been "recessed and in the proper place. Neither defect, in and of itself, would have caused the interference and resulting popping, but the ...