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Grossman v. D'or

AUGUST 28, 1968.




Appeal from the Circuit Court of Cook County; the Hon. RICHARD A. HAREWOOD, Judge, presiding. Affirmed. TRAPP, J.

Defendant appeals from a judgment in the sum of $5,830 upon an account stated, entered in favor of the plaintiff after a trial before the court.

It is urged on appeal that the evidence established, as a matter of law, that defendant, as buyer, had revoked acceptance of the merchandise, and that the judgment of the court was against the manifest weight of the evidence.

The complaint alleges the sale of some 708 wig cases and the refusal to pay the unpaid purchase price thereon. Delivery was made under two invoices in September, six invoices in October and one invoice in November, all in the year 1962.

Defendant's answer alleged that the wig cases were defective, that the seller and its agent were unable to cure the defects after prompt notice, and that defendant repeatedly asked that the cases be taken back, but received no reply.

Defendant argues revocation of acceptance under the provisions of chapter 26, § 2-608, Ill Rev Stats, 1961:

"(1) The buyer may revoke his acceptance of a lot or commercial unit whose non-conformity substantially impairs its value to him if he has accepted it

"(a) on the reasonable assumption that its non-conformity would be cured and it has not been seasonably cured; or

"(b) without discovery of such non-conformity if his acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller's assurances.

"(2) Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects. It is not effective until the buyer notifies the seller of it.

"(3) A buyer who so revokes has the same rights and duties with regard to the goods involved as if he had rejected them." 1961 July 31, Laws 1961, p 2101, § 2-608.

The trial court stated into the record certain conclusions, i.e., that there was some evidence that some of the cases were slightly defective, that such items were repaired by the salesman, or repaired by the seller and redelivered to the defendant, that payments were made from time to time on the several shipments without showing when such payments were stopped, and that the defendant had not reasonably informed the seller of the revocation of the acceptance of the merchandise.

The burden is on the buyer to establish any breach with respect to the goods accepted. Chapter 26, § 2-607, Ill Rev Stats, 1961. The evidence, as abstracted, has little specific focus on the quality of the merchandise, and is substantially undocumented. When called under section 60 of the Civil Practice Act, defendant testified that separate orders were given for the cases shipped under the nine invoices. The abstract does not indicate the number of orders as distinguished from the number of invoices. He testified that he complained as to the first shipment, specifically as to the failure of locks or latches on the cases, and the fact that the "blockhead" or form for holding the wig came loose in the case. He asserted that similar complaint was made as to all shipments, and that all of the cases were no good. Some cases were given away to customers who purchased wigs, and it is stated that one-half of such cases were returned. On cross-examination defendant testified that some wholesale customers to whom shipments were made returned the cases unopened, because they did not like the merchandise. He testified that some 350 to 400 cases were ruined by water when stored in his basement in 1965, and were hauled away.

One Linderman, appearing under subpoena, testified that he had been the salesman for the seller during the period of the shipments, that he had examined the first 200 cases sent to the buyer, a few of which had defective latches which he fixed, or which were repaired at the factory and returned to the defendant. On some, the form which held the wigs came loose and he glued the necessary pieces in. He testified that he told defendant to put aside a few cases for returning to the seller, which would be repaired or replaced. He further testified that defendant ...

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