APPEAL from the Circuit Court of Cook County; the Hon. SAMUEL
SHAMBERG, Judge, presiding.
MR. JUSTICE BURKE DELIVERED THE OPINION OF THE COURT:
Plaintiff brought an action in February, 1969, to recover the purchase price of a used industrial crane alleging that the crane did not conform to an express warranty given by defendant. The court granted defendant's motion for a finding at the close of plaintiff's case. (Ill. Rev. Stat. 1971, ch. 110, par. 64(5).) Plaintiff contends on appeal that the evidence establishes the creation and breach by the defendant of an express warranty attesting to the used crane's lifting capacity. Defendant responds that the contract between the parties does not include an express warranty.
On September 29, 1965, Alan Wood Steel Company ("Alan Wood"), located in Conshohocken, Pennsylvania, mailed inquiries to six used-equipment companies requesting price and delivery information about two different types of cranes: a 75-ton used diesel electric locomotive crane with a 70-foot boom and a 100-ton used diesel electric locomotive crane with a 70-foot boom. The record indicates that Alan Wood is a manufacturer of steel plates and strip, and presently uses locomotive cranes in its coke and chemical divisions. One of Alan Wood's inquiries was received by Capital Equipment Enterprises, Inc. ("Capital"), located in Bloomfield, New Jersey. Capital acts either as a broker or as a principal in its regular commercial practice of buying and selling working machinery, material handling equipment, and power generating equipment.
Homer Gottshall, assistant purchasing agent for Alan Wood, testified that he received a telephone call in January, 1966, from Murray Grainger, the president of Capital. Grainger informed Gottshall that a 75-ton steam locomotive crane with a 40-foot boom was available in Chicago for inspection and purchase. Grainger had never seen the crane which was then owned by Power Systems, Inc., of Chicago. Subsequently, Grainger and Gottshall made the necessary arrangements for an inspection of the crane in Chicago by George Boyd, Alan Wood's supervisor of heavy equipment.
Boyd's duties at Alan Wood included the supervision of the repair of locomotives and cranes owned by Alan Wood. Boyd did not testify at trial. However, both parties stipulated that if Boyd testified, he would have stated that his inspection was limited to a determination of whether the crane's mechanical moving parts functioned properly. Boyd would have further testified that the crane was not tested for its lifting capacity. No representative from Capital was present at the time of Boyd's examination.
On February 3, 1969, Alan Wood received a "formal quotation" from Capital describing the crane as a "75 ton, 40 foot boom Brownhoist Steam Locomotive Crane." Boiler and speed specifications were listed, as well as the crane's manufacturing date, 1942, and its serial number, 11494. The asking price was $9950. The only printed terms on the quotation form are conspicuously located in the top center portion of the form's front side. The language reads as follows:
"CONDITIONS: All quotations are for immediate acceptance. They are subject to withdrawal, change, and prior sale without notice. Shipping dates are only approximate and contingent upon delays beyond our control. All equipment is subject to inspection and the descriptions are approximate and intended to serve as a guide. All orders received are binding only when they have been accepted and acknowledged by us in writing. Provisions in customer's purchase orders contrary to these conditions are not binding upon us unless accepted in writing. Prices quoted are F.O.B. shipping point, exclusive of state, county, and federal taxes, which must be added where applicable."
A few days after Alan Wood received Capital's "formal quotation," Homer Gottshall and Murray Grainger again conversed by telephone. Gottshall requested that a second inspection by one of Alan Wood's representatives be arranged. Lester Seifert, a crane operator employed by Alan Wood, inspected the crane in Chicago in February, 1966.
Seifert's duties at Alan Wood included operating and repairing the various cranes owned by Alan Wood. Seifert did not testify at trial. However, both parties stipulated that if Seifert testified, he would have stated that his inspection consisted of observing the crane in operation. The crane was moved along a railroad track, and its boom was maneuvered in every feasible direction. However, the crane was never tested for its lifting capability. No representative from Capital was present at the time of Seifert's examination.
The management of Alan Wood, after conferring with Seifert upon his return, instructed Gottshall to purchase the crane. Gottshall informed Grainger by telephone on February 16, 1966, that Alan Wood was willing to accept Capital's offer of sale, and that a purchase order would be mailed to Capital. Gottshall testified on cross-examination that he did not speak with either Boyd or Seifert about their respective examinations of the crane. Gottshall further stated that Grainger informed him that the crane was an Industrial Brownhoist during their first telephone conversation in January, 1966. The record indicates that Alan Wood owns, operates and is familiar with other heavy equipment manufactured by Industrial Brownhoist.
On February 21, 1966, Alan Wood mailed a form purchase order and an accompanying form acknowledgment to Capital. The reverse side of these documents identically contained 17 printed terms and conditions which were to be accepted by Capital upon the signing and return of the acknowledgment. Included among the more pertinent terms were the following: seller would warrant conformity to all specifications furnished by purchaser; seller would warrant that all materials would be free from defect for a period of one year; time of performance would be of the essence; shipment would be in seller's name; and certain provisions of the Fair Labor Standards Act would be applicable. Alan Wood tendered $5000 to Capital as partial payment for the crane.
On February 23, 1966, Murray Grainger returned Alan Wood's acknowledgment. Below his signature on the face of the acknowledgment, Grainger typed, "Accepted subject to modifications contained in our letter dated 2/23/66 attached." Grainger's letter addressed to Homer Gottshall reads as follows:
"We acknowledge with thanks receipt of your order #G-5861 and your deposit which we are pleased to accept subject to the following modifications discussed by telephone:
1. The provision on the face of the order in regard to compliance with the Fair Labor Standards Act shall not apply.
2. Shipment papers will show your company as the shipper.
3. The delivery date is not to be considered as a commitment and in all likelihood the crane should arrive at your ...