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Ozite Corp. v. F.c. Clothier & Sons Corp.

DECEMBER 17, 1970.

OZITE CORPORATION, PLAINTIFF-APPELLANT,

v.

F.C. CLOTHIER & SONS CORP., DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of McLean County; the Hon. WILLIAM T. CAISLEY, Judge, presiding.

MR. JUSTICE CHAMBERLAIN DELIVERED THE OPINION OF THE COURT:

The Ozite Corporation, hereinafter referred to as "seller", brought an action against the F.C. Clothier and Sons Corporation, hereinafter referred to as "buyer", for goods delivered. From a denial of full judgment, plaintiff appeals.

The defendant, in September of 1966, had received $550.00 worth of padding for carpeting. The shipment consisted of twenty rolls. The buyer shortly after receiving the goods notified the salesman for the seller that the goods were defective and asked that they be reclaimed.

For some time thereafter, the buyer was billed for the goods and in turn the buyer complained to the salesman. The salesman indicated that it was a misunderstanding and would be straightened out in the near future. The goods were neither reclaimed nor paid for.

Later, the defendant sold $115.50 of the padding. When the balance of the padding was not reclaimed the defendant destroyed it during the summer of 1968.

Plaintiff then sued defendant for the full value of the padding.

The Circuit Court entered a judgment on behalf of the plaintiff in the amount of $115.50, but denied recovery for the value of the remaining padding. The plaintiff on appeal seeks judgment for the full value of the goods.

The plaintiff contends that full recovery should be allowed on the basis that the defendant failed to reject acceptance of the goods according to law. Further, since he destroyed them, he has responsibility to pay for them.

Defendant argues that there is no obligation to pay for the padding since notice was given that the goods were defective and that this constituted a valid rejection, and when they were not reclaimed, any further obligations were terminated.

The trial court, obviously, made a conscientious effort to do equity. However, the denial of a full judgment cannot stand. It is tempting to affirm the trial court's decision under these circumstances, but an affirmance would do violence to the statutes involved.

Section 2-602 of Chapter 26, Illinois Revised Statutes, 1965, provides:

"Manner and Effect of Rightful Rejection.

(1) Rejection of goods must be within a reasonable time after their delivery or tender. It is ineffective unless the buyer ...


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