prove a set of facts entitling it to some relief. At a minimum
WICO may be able to prove Willis announced its intention to and
did breach the Agreements' termination provisions. That is enough
to survive Willis' present motion.
WICO's Potential Remedies
Willis also argues (Mem. 4-6; R.Mem. 1-6) rescission is not a
proper remedy under the facts alleged. That argument does not
support dismissal of the Complaint, but only the striking of a
remedy sought (familiar pleading principles teach the prayer for
relief is not part of the cause of action itself, which is a
function of the facts alleged in the complaint).*fn3
Willis contends (1) the Agreements were contracts for the sale
of goods and (2) WICO admits its acceptance of the goods and does
not allege their nonconformity and therefore (3) WICO is not
entitled to rescission as a remedy under UCC Article 2. See
Ill.Rev.Stat. ch. 26, §§ 2-607, 2-714.*fn4 WICO responds (Ans. Mem.
9-15) (1) the Agreements were not contracts for the sale of goods
and (2) even if they were, their service components predominate
and therefore (3) UCC Article 2 is not applicable.
Illinois applies the "dominant purpose" test to determine
whether contracts are for sale of goods or for services when both
are plainly involved. See Davenport, Murray and Cassling,
"Illinois Code Comment," Ill.Ann.Stat. ch. 26, § 2-102
(Smith-Hurd 1983 Supp.), at 29, and cases cited. Although the
Agreements are in many ways hybrids, their sale-of-goods purpose
WICO seizes on the facts the Agreements (1) did not require a
specific purchase of goods (Ans.Mem. 9-10) and (2) set out a host
of service responsibilities (id. at 11-12). But sale of goods is
nevertheless the raison d'etre of the Agreements: All the service
aspects of the Agreements are aimed at developing and increasing
the market for Willis' graphics, and those graphics were to be
sold by WICO. This simply is not a situation in which sale of
goods is really incidental to the rendition of services. Cf.
Carroll v. Grabavoy, 77 Ill.App.3d 895, 899-901, 33 Ill.Dec. 309,
311-313, 396 N.E.2d 836, 838-40 (3d Dist. 1979) (finding
dentist's provision of dentures was not a sale of goods);
Executive Centers of America, Inc. v. Bannon, 62 Ill.App.3d 738,
741-42, 19 Ill.Dec. 700, 702-03, 379 N.E.2d 364, 366-67 (3d Dist.
1978) (finding golf professional's contract was predominantly
contract for services although he was required to purchase 20
golf carts from country clubs). Thus, even though WICO was not
simply a distributor of goods, the Agreements were for the sale
of goods — without such sale the Agreements were meaningless.
Accordingly, rescission is not an available remedy in this
Willis' motion to dismiss is denied. WICO's prayer for
rescission of the Agreements is stricken. WICO is granted leave
to amend its Complaint accordingly on or before July 22, 1983.
Willis is ordered to answer the Amended Complaint or otherwise
plead on or before August 5, 1983. A status hearing in this
action is hereby scheduled for August 26, 1983 at 9:15 a.m.