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Presto Mfg. Co. v. Formetal Eng'r Co.





APPEAL from the Circuit Court of Cook County; the Hon. GEORGE E. DOLEZAL, Judge, presiding.


Plaintiff, Presto Manufacturing Co., Inc., brought this small claims action (Ill. Rev. Stat. 1971, ch. 110A, pars. 281-288) against defendant, Formetal Engineering Company, to recover a balance of $436.84 allegedly owed for goods sold and delivered by plaintiff to defendant. Defendant counterclaimed for $800, alleging rejection of the goods and breaches of warranties. Plaintiff moved for summary judgment which was granted, and defendant's counterclaim was dismissed. On appeal defendant contends that (1) summary judgment was improperly granted, and (2) the dismissal of the counterclaim was in error.

In the summer of 1971 defendant submitted to plaintiff a sample and specifications for precut polyurethane pads to be used in making air conditioning units. Defendant indicated the particular use to which the pads were to be put and requested a price quotation for the manufacture and delivery of the pads. Plaintiff then submitted the quotation and defendant placed an order for one million pads. Although defendant paid for the goods once they were delivered, defendant subsequently discovered that the pads did not conform to the sample and specifications in that there were incomplete cuts, color variances, and faulty adherence to the pads' paper backing. Plaintiff was then informed of the defects. It later replied that it had determined the cause of the problems and had corrected the defects.

In March 1972, defendant ordered an additional 250,000 polyurethane pads. It is this order which gives rise to the instant appeal. With its new order defendant sent a number of defective pads from the earlier shipment as a reminder that such defects should not be repeated. The new shipments arrived on April 17 and April 26, 1972. Defendant informed plaintiff on April 24 and thereafter that the recent shipments suffered from the same defects as the 1971 shipment. Further, defendant advised plaintiff that the pads would be rejected and returned to plaintiff. The goods were not returned to plaintiff until August 29, 1972.

Plaintiff later sued to recover $436.84 for the goods, attaching to its complaint a statement reflecting the invoice dates; defendant filed its appearance and then counterclaimed for damages in the amount of $800. Without supporting affidavits, plaintiff moved for and was granted summary judgment. Defendant's counterclaim was dismissed at the same time.


• 1, 2 We believe this case is particularly unsuited for resolution by summary judgment. A motion for summary judgment is proper where the pleadings, depositions, and admissions on file, together with any affidavits and exhibits, show that there is no genuine issue as to any material fact. (Ill. Rev. Stat. 1975, ch. 110, par. 57; Carruthers v. B.C. Christopher & Co. (1974), 57 Ill.2d 376, 380, 313 N.E.2d 457; Barnes v. Washington (1973), 56 Ill.2d 22, 26, 305 N.E.2d 535.) Yet the reviewing court will reverse an order granting summary judgment if it determines that a material question of fact does exist (Econo Lease, Inc. v. Noffsinger (1976), 63 Ill.2d 390, 393, 349 N.E.2d 1) because summary judgment is inappropriate under such circumstances (20 East Cedar Condominium Association v. Luster (1st Dist. 1976), 39 Ill. App.3d 532, 534, 349 N.E.2d 586). The right of the moving party must be clear and free from doubt. (Lesser v. Village of Mundelein (2nd Dist. 1975), 36 Ill. App.3d 433, 437, 344 N.E.2d 29; National Bank v. S.N.H., Inc. (1st Dist. 1975), 32 Ill. App.3d 110, 117, 336 N.E.2d 115; Wegener v. Anna (5th Dist. 1973), 11 Ill. App.3d 316, 320, 296 N.E.2d 589.) In making its determination, a court must construe the pleadings strictly against the moving party and liberally in favor of the opponent (Donart v. Board of Governors (4th Dist. 1976), 39 Ill. App.3d 484, 486, 349 N.E.2d 486; Hernandez v. Trimarc Corp. (1st Dist. 1976), 38 Ill. App.3d 1004, 1006, 350 N.E.2d 202; Cronin v. Delta Air Lines, Inc. (1st Dist. 1974), 19 Ill. App.3d 1073, 1076, 313 N.E.2d 245); and if the facts admit of more than one conclusion or inference, including one unfavorable to the moving party, the motion for summary judgment should be denied (Dakovitz v. Arrow Road Construction Co. (2nd Dist. 1975), 26 Ill. App.3d 56, 60-61, 324 N.E.2d 444).

Although summary judgment is an important tool in the administration of justice and its use encouraged in proper cases (Fooden v. Board of Governors (1971), 48 Ill.2d 580, 586, 272 N.E.2d 497; Allen v. Meyer (1958), 14 Ill.2d 284, 292, 152 N.E.2d 576), courts must remain cautious not to preempt the right to trial by jury where a material dispute may exist (Anderson v. Dorick (3rd Dist. 1975), 28 Ill. App.3d 225, 227, 327 N.E.2d 541). When faced with a disagreement as to material facts, the court must deny the motion and set the cause for trial. (Reith v. General Telephone Co. (5th Dist. 1974), 22 Ill. App.3d 337, 339, 317 N.E.2d 369.) In light of these well-established principles, summary judgment was erroneously granted in the instant case.

• 3 Our review of the pleadings reveals a glaring absence of facts. Plaintiff's complaint alleged only defendant's indebtedness, plaintiff's demand for payment, and defendant's refusal to pay. Defendant, by filing its appearance, pursuant to Supreme Court Rule 286, did not have to file an answer, and the allegations of the complaint were considered denied. In reliance on the fuller facts alleged in defendant's counterclaim and bill of particulars, plaintiff moved for and was granted summary judgment. We believe that plaintiff's right to summary judgment was far from clear. When the pleadings are construed most strictly against the plaintiff and most liberally for defendant, as they must, the facts are as follows. Defendant ordered polyurethane pads from plaintiff with the specific warning that defects noted in a prior shipment not be repeated. Upon discovering the very same defects in the new shipment, defendant refused the goods and returned them approximately 125 days later. Neither the reviewing court, nor the court below, was apprised of the parties' past methods of negotiation, their previous agreements, or their usual business customs. We have no way of knowing the type, substance, or number, if any, of communications between the parties after defendant notified plaintiff of the pads' defective nature. Yet plaintiff urges that summary judgment was proper because no triable fact issues existed. We disagree.

• 4 The error in granting summary judgment is highlighted by the dismissal of defendant's counterclaim. Plaintiff's motion for summary judgment concluded with a request for summary judgment on its complaint and also for dismissal of defendant's counterclaim. Although plaintiff did not specify whether its request for dismissal was in the nature of a section 45 motion or a section 48 motion under our Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, pars. 45, 48), it fails under either provision. Plaintiff's request was tacked onto its motion for summary judgment and wholly failed to even suggest why the counterclaim was believed insufficient. A section 45 motion, however, must "point out specifically the defects complained of" (Yale Development Co., Inc. v. Oak Park Trust & Savings Bank (2nd Dist. 1975), 26 Ill. App.3d 1015, 1019, 325 N.E.2d 418) so that the party against whom it is directed may cure the specified objection (Central Illinois Electric & Gas Co. v. Scully (1959), 17 Ill.2d 348, 353, 161 N.E.2d 304; Lee v. Conroy (3rd Dist. 1973), 13 Ill. App.3d 694, 696, 300 N.E.2d 505). Thus, a motion to dismiss is often impermissible where specific grounds are not set forth. Senese v. City of Chicago (1st Dist. 1967), 88 Ill. App.2d 178, 181, 232 N.E.2d 251; Admiral Oasis Hotel Corp. v. Home Gas Industries, Inc. (1st Dist. 1965), 68 Ill. App.2d 297, 304, 216 N.E.2d 282.

• 5 Alternatively, a section 48 motion must be supported by affidavits "[i]f the grounds do not appear on the face of the pleading attacked." (Holderman v. Moore State Bank (1943), 383 Ill. 534, 548, 50 N.E.2d 741; People ex rel. Highsmith v. County of Jefferson (5th Dist. 1967), 87 Ill. App.2d 145, 151, 230 N.E.2d 480.) If affidavits are required, they must allege facts demonstrating that the motion is well founded. (Chapman v. Huttenlocher (2nd Dist. 1970), 125 Ill. App.2d 39, 46, 259 N.E.2d 836.) Any deficiency in defendant's counterclaim is not apparent on its face; supporting affidavits were, therefore, required of plaintiff. None were offered. Thus, we conclude that under either section 45 or 48 the dismissal of defendant's counterclaim was improper.

• 6 Furthermore, a cause of action should be dismissed on the pleadings only if it clearly appears that no set of facts can be proved which would demonstrate the right to recovery. (Edgar County Bank & Trust Co. v. Paris Hospital, Inc. (1974), 57 Ill.2d 298, 305, 312 N.E.2d 259; Winnett v. Winnett (1974), 57 Ill.2d 7, 13, 310 N.E.2d 1; Miller v. DeWitt (1967), 37 Ill.2d 273, 287-88, 226 N.E.2d 630.) Within its counterclaim defendant has alleged plaintiff's delivery of nonconforming, defective goods and resulting damage. We believe that these facts, if proved, evidenced, at the very least, a possibility of recovery. When such a possibility emerges, an order of dismissal must be vacated. Maas v. Ottawa Stockdale Fertilizer, Inc. (3rd Dist. 1972), 9 Ill. App.3d 33, 36, 291 N.E.2d 514; Johnson v. North American Life and Casualty Co. (5th Dist. 1968), 100 Ill. App.2d 212, 220, 241 N.E.2d 332; Palier v. New City Iron Works (1st Dist. 1967), 81 Ill. App.2d 1, 5, 225 N.E.2d 67.


• 7 The order of the court granting summary judgment is especially troublesome because the case at bar is a small claims case (Supreme Court Rule 281 et seq.), in which no affidavits were offered in support. The rules governing small claims actions were designed to provide an expeditious, simplified, and inexpensive procedure for the handling of such claims. (Dobrowolski v. LaPorte (1st Dist. 1976), 38 Ill. App.3d 492, 494, 348 N.E.2d 237; Wroclawski v. Waszcyk (1st Dist. 1976), 35 Ill. App.3d 408, 411, 342 N.E.2d 261; Maxcy v. Frontier Ford, Inc. (2nd Dist. 1975), 29 Ill. App.3d 867, 872, 331 N.E.2d 858; Griffin v. Billberry (2nd Dist. 1971), 1 Ill. App.3d 219, 221, 273 N.E.2d 693; see also Historical and Practice Notes, Ill. Ann. Stat., ch. 110A, pars. 281-88 (Smith-Hurd 1968 and 1976-77 Supp.).) According to Rule 286, if the defendant appears, he need not file an answer unless ordered to do so by the court (Jackson Park Plaza v. Stewart (1971), 49 Ill.2d 390, 390, 275 N.E.2d 398); and "the allegations of the complaint will be considered denied and any defense may be proved as if it were specifically pleaded." (Supreme Court Rule 286.) ...

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