APPEAL from the Circuit Court of Boone County; the Hon. ALBERT
S. O'SULLIVAN, Judge, presiding.
MR. JUSTICE THOMAS J. MORAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 27, 1971.
Plaintiff brought suit against the defendant for a breach of contract involving the sale of a heat treating furnace. After a bench trial, the court held for the plaintiff and found damages to be in the amount of $9,095.00. The court further held that "the sum has been withheld by unreasonable and vexatious delay", assessed an additional sum of $505.00 to the amount of actual damages incurred and entered judgment for the total sum of $9600.00.
Ipsen Industries, referred to herein as plaintiff, is a division of Alco Standard Corporation and manufactures metal treating furnaces. For approximately three years prior to the controversy herein, Ipsen-Lab, another subsidiary of Alco, located near the plaintiff, had been treating certain of defendant's products.
In May of 1968, Mr. Anderson, a Vice-President of defendant, went to the plaintiff's plant and told one Watkins, an agent of the plaintiff, that he wanted to obtain a furnace for the defendant's Arizona plant. He wanted the largest and best suited furnace for defendant's needs and one that could be obtained in the shortest possible time. Anderson testified that he was told that the large unit he desired could not be fabricated in less than twenty to twenty-four weeks; he responded that this was too long a period of time and, after some discussion, he was told by Watkins that a furnace could be made up in about twelve weeks, and that it would serve their needs.
Anderson then called his office and was given a purchase order number which was turned over to Watkins. Watkins later drafted and sent to defendant a specification and purchase order providing for the sale of a Model VFC 924-S vacuum furnace. This order was signed and returned by defendant.
Watkins testified that Anderson came to plaintiff's plant and was desirous of obtaining the largest heat treating furnace he could get; that two or three sizes were discussed; that delivery time was injected into the conversation; that he informed Anderson that the larger units would take from twenty to twenty-four weeks for delivery; that he was informed that this was too long a period of time; that he told Anderson that they had smaller units (Model VFC 924-S) coming through the plant which could be delivered in approximately ten weeks or less; and that Anderson found the smaller unit to be acceptable.
The furnace was delivered to Phoenix on or about July 6, and on July 12, one Wilson, an employee of plaintiff's California office went to the plant to supervise installation. At this point substantial conflict in the testimony arises. Defendant's Phoenix plant managers, the D'Ambrosio brothers, testified that on July 17, Wilson and one McIntier, plaintiff's west coast manager, came to the plant and examined the furnace; that McIntier came to the conclusion that the furnace which met the specifications called for in the contract would not meet defendant's needs, and that defendant should have the furnace shipped to a plant in California where there was another potential buyer.
The testimony offered by plaintiff's two employees, McIntier and Wilson, differs markedly. In substance they testified that when they arrived at the Phoenix plant on July 17, they were told by Anderson and the D'Ambrosio brothers that the defendant was planning to or had already cancelled the order because the furnace was not of sufficient capacity. They wanted to obtain a larger furnace from plaintiff to handle future production needs. McIntier testified that he was advised by the defendant's representatives to make arrangements to have the furnace removed from defendant's premises.
The furnace was shipped to a warehouse in California and sold to another manufacturer.
Plaintiff's complaint alleges the contract; fabrication and delivery of the furnace pursuant to the specification; the failure of the defendant to pay; the resale of the furnace to mitigate damages and a deficiency due.
Defendant filed an answer, generally denying the allegations of the complaint and set forth affirmative defenses that the contract was not mutually binding, was not in writing as required by the Statutes of Frauds, and that the facts alleged did not support the venue of the court. The latter two defenses are not before us in this review.
• 1 Defendant complains that the court erred in failing to find an implied warranty that the furnace would be fit for the purpose required. In order to resolve this question, the trial court was required to make a judgment of the facts and decide whether or not such a warranty did exist. The court, after weighing the disputed testimony, found that there was no such warranty. Additionally, the defense of the breach of an implied warranty is an affirmative defense which must be pleaded and proved by a preponderance of the evidence by the reliant. (Radio Corp. of America v. Smith (1969), 109 Ill. App.2d 91; Burge Ice Mach. Co. v. Dickerson (1965), 60 Ill. App.2d 266.) Defendant did not assert this defense in its pleadings, nor did it satisfy the trial court upon the evidence.
• 2 Defendant contends that parties to a contract have a right to cancel it at anytime, relying on Printing Mach. Maintenance v. Carton Products (1957), 15 Ill. App.2d 543 and Willis v. Ruthruff & Ryan (1957), 14 Ill. App.2d 259. However, he omits from the rule "by mutual agreement." The burden of proving such mutual agreement is on the one who asserts it. The record herein does not disclose any mutual ...