Appeal from Circuit Court of Cook County, Law Division; the
Hon. GLENN T. JOHNSON, Judge, presiding. Affirmed.
Rehearing denied February 19, 1970.
Upon trial before the court on a complaint and counterclaim concerning a contract for processing material, the court entered judgments for the defendant as to the complaint and for the plaintiff-counterdefendant upon defendant's counterclaim. Plaintiff appeals.
The record brought to this court contains only the pleadings, the judgment of the trial court and the recorded comments of the trial court on entering judgment.
The complaint alleged that by written contract, plaintiff agreed to waterproof 13,789 3/4 yards of material furnished by defendant to plaintiff for a price of 32 cents per yard, or a total price of $4,630.70, that the goods were processed by plaintiff, returned to defendant and retained by defendant, and that payment had not been received. The answer admitted the foregoing, but alleged that by written contract plaintiff had agreed to waterproof silk cloth in accordance with sample furnished by plaintiff to defendant, that plaintiff failed to waterproof in the manner it agreed to, that plaintiff caused the silk cloth to become tacky and as a result defendant sustained damage. The reply denied the affirmative matter alleged in the answer. Defendant, by a second amended counterclaim, sought damages for additional processing costs incurred in an attempt to eliminate tackiness, additional labor costs on account of working with tacky material, losses attributable to unusable material, losses attributable to sale of coats at less than normal prices, and inability to sell some coats at all, which damages were alleged to be $15,252.20.
The trial court's comments at the time of entry of the judgments were:
"The court finds that the work was not done in accordance with the sample and in a good and workmanlike manner.
"The court further finds that the goods were returned to the defendant and most of it sold to regular customers and some of it for the regular price. The defendant never paid plaintiff for the work done because of the quality of the work. The counterplaintiff has failed to meet the burden of proof as to damages on the counterclaim."
Both parties apparently agree that the matter is to be determined by the law of New York. The plaintiff asserts that the transaction is governed by Uniform Commercial Code, and cites sections 2-606, 2-709(1) (a) and 2-607(4).
Section 2-606(1) (a) provides:
"(1) Acceptance occurs when the buyer (a) after a reasonable opportunity to inspect the goods signifies to the seller that the goods are conforming or that he will take or retain them in spite of their non-conformity;"
Section 2-607 provides, (in part):
"(1) The buyer must pay at the contract rate for any goods accepted.
"(2) Acceptance of goods by the buyer precludes rejection of the goods accepted and if made with knowledge of a non-conformity cannot be revoked because of it unless the acceptance was on the reasonable assumption that the non-conformity would be seasonably cured but acceptance does not of ...