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Burrus v. Itek Corp.





APPEAL from the Circuit Court of Tazewell County; the Hon. JAMES D. HEIPLE, Judge, presiding.


After bench trial in the Circuit Court of Tazewell County plaintiff Sherman Burrus, d/b/a Metropolitan Printers, was awarded judgment and damages against the defendant Itek Corporation for breach of an implied warranty arising from the sale of a printing press. From that judgment and award of damages this appeal ensued.

The plaintiff is a job printer whose business is located in East Peoria under the business name of Metropolitan Printers. He has been in business since 1961 and has been concerned primarily with printing letterheads, envelopes, brochures and cards. In April of 1970 the plaintiff purchased a printing press from the defendant, the price of which was $5,068.88, but as the result of certain financing ultimately resulted in an expenditure of $7,006.08.

The plaintiff considered purchasing the press for a period of approximately two years prior to the actual purchase and then only after he had made a visit to Bloomington to personally watch the operation of an identical press. A representative of the defendant company, Mr. Nessel, assured the plaintiff that for the kind and quality of printing he was doing the press in question was the one which would satisfy and fulfill his needs. It was represented to be less time-consuming, cheaper to operate and eliminated the need for certain negatives.

From the record it is clear that from the time the press was delivered to the plaintiff's place of business problems and difficulties were encountered almost continuously. Representatives of the defendant worked for several days in an effort to install the press and to get it operating properly. It was the testimony of the plaintiff that the press never did operate properly. His specific complaints were that it did not feed properly, it had paper jam-ups, it failed to register properly (which is a process where one symbol is printed on top of another identical symbol without any visible overlap on the printed surface), that the machine streaked or smeared the printed surface, that it was not timed properly, produced crooked printing, was slow in printing and problems with loose or defective parts were ever present.

It is evident from the testimony adduced during the trial of this case that representatives of the defendant company, the plaintiff and his employees spent many hours in an effort to correct the deficiencies of the press and to get it to operate properly. One witness, a former employee of the defendant, testified that out of an eight-hour working day the press operated properly not more than two hours.

It is apparent that sometime within 60 days after the plaintiff purchased the press he expressed a desire that it be replaced. Mr. Nessel, a salesman for the defendant company, recommended to his employer that it be replaced but his recommendation was not accepted.

The defense of the defendant was primarily based upon the proposition that the operators of the press in question were not skilled operators as to this particular piece of equipment and that the press did not receive proper maintenance. The primary operators were the plaintiff and a Mr. Wiese, who was also an instructor in the printing department at Illinois Central College.

In this appeal the defendant raises two issues, the first being whether the plaintiff sustained his burden of proof that an implied warranty existed in regard to the press and whether such warranty was breached. The second issue is whether the court properly assessed the correct amount of damages that plaintiff was entitled to recover.

As to the first issue we direct our attention to section 2-316 of the Uniform Commercial Code (Ill. Rev. Stat. 1975, ch. 26, par. 2-314), which provides:

"(1) Unless excluded or modified (Section 2-316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. * * *"

This statutory provision contains three elements which had to be present to support the existence of an implied warranty. First, we must have present "goods" which fall within the purview of the statute; secondly, there must be a contract for the sale of the goods, and the seller must be a merchant engaged in selling such goods.

• 1 Turning to our Commercial Code (Ill. Rev. Stat. 1975, ch. 26, par. 2-105) we find the following definition of goods:

"(1) `Goods' means all things, including specially manufactured goods, which are movable at the time of identification ...

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