APPEAL from the Circuit Court of Cook County; the Hon. IRVING
J. KIPNIS, Magistrate, presiding.
MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:
This action was brought by Brule C.E. & E. Inc. (hereafter referred to as Brule) against Pronto Foods Corporation (hereafter referred to as Pronto) to recover $10,000 as the unpaid portion of the purchase price for an incinerator. The parties waived trial by jury, and the matter proceeded to trial on January 19, 1970. At the close of plaintiff's evidence, the court upon Pronto's motion found the issues in favor of the defendant and entered judgment accordingly from which the plaintiff, Brule, appeals. No questions are raised on the pleadings.
On August 22, 1966, Brule submitted a proposal to Pronto for the lease of one Brule Series F G 4-6 Heavy Duty Industrial Type of Incinerator with a capacity of burning 850 pounds per hour of loose paper, wood, and cardboard, and this proposal was accepted by Pronto on September 27, 1966. Subsequently on November 25, 1966, the parties entered into a memorandum of agreement under which Pronto agreed to purchase the incinerator at a price of $20,052.00 plus sales tax rather than to lease the equipment. Brule was required under the agreement to obtain an air pollution permit.
The record reveals that an incinerator with a capacity of burning 850 pounds per hour of loose paper, wood, and cardboard was assembled and made operational on Pronto's premises in January of 1967 and that on March 8, 1967, a permit was issued by the City of Chicago for the installation on Pronto's premises of an incinerator which was described in the permit as having a rating of 640 pounds per hour.
The evidence introduced by the plaintiff established the existence of the contract, the installation of the incinerator with a capacity of 850 pounds per hour, the procurement of a permit for a unit with a rating of 640 pounds per hour, the use of the incinerator by Pronto for a period of over two years, and the non payment of the balance of the purchase price. At the conclusion of the plaintiff's evidence the defendant moved for a finding in its favor. The trial judge allowed the motion on the ground that Brule had not complied with the contract because it had failed to obtain a permit to operate the unit at the rate of 850 pounds per hour.
Brule on appeal contends that the evidence introduced by it was sufficient to establish a prima facie case. Pronto in response argues that Brule is not entitled to recover (1) because it failed to perform an essential condition of the contract, the procurement of a permit with a rating of 850 pounds per hour and (2) because Brule's performance without such a permit was unlawful.
• 1 The rights of the buyer upon the delivery of goods which do not conform to the contract are outlined in section 2-601 of the Uniform Commercial Code (Ill. Rev. Stat. 1965, ch. 26, par. 2-601) which provides:
"§ 2-601. Buyer's Rights on Improper Delivery
Subject to the provisions of this Article on breach in installment contracts (Section 2-612) and unless otherwise agreed under the sections on contractual limitations of remedy (Sections 2-718 and 2-719), if the goods or the tender of delivery fail in any respect to conform to the contract, the buyer may
(c) accept any commercial unit or units and reject the rest."
The buyer upon improper tender may accept all the goods, reject all the goods, or accept part and reject part. Once the goods are accepted, however, the buyer must pay for them at the contract rate unless acceptance is revoked. Section 2-607 (1) of the Uniform Commercial Code (Ill. Rev. Stat. 1965, ch. 26, par. 2-607(1)). The acts which constitute acceptance of goods are set forth in ...