The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Lorenzo Banfi di Banfi Renzo & Company ("Banfi") sues Davis
Congress Shops, Inc. d/b/a Davis For Men ("Davis") for payment
of $56,123 allegedly owed on deliveries of 513 pairs of Banfi
shoes to Davis. Davis has filed Counterclaims for the same
amount,*fn1 alleging the shoes were non-conforming and not
merchantable. Banfi has now moved under Fed.R.Civ.P. ("Rule")
56 for summary judgment on its claim. *fn2 For
the reasons stated in this memorandum opinion and order
Banfi's motion is granted.
No controversy exists on the essential facts of Banfi's
claim.*fn3 It is not disputed Davis ordered and received from
Banfi, sometime in early summer 1982,*fn4 shoes billed at
$56,123. Complaint Count I ¶ 2; Counterclaim Count I ¶¶ 4, 7;
Givigliano Aff. ¶ 4; R. Mem. Exs. 1-3; S. Davis Dep. 7-8.
What the parties do contest is whether Davis timely informed
Banfi the shoes received were non-conforming. Davis has
submitted no record of such a communication to Banfi, but
Davis' officials say Banfi was quickly notified the shoes were
defective. S. Davis Aff. ¶¶ 8-9;*fn5 Weingarten Dep. 16-19.
Davis' August 16 memo to Banfi (R.Mem.Ex. 5) does note "extreme
problems with the fitting" of Banfi's shoes, but that memo
followed several other July and August communications (id. Exs.
6-9) of lesser shipment problems. And those prior
communications, both by the things they complain about and the
things they do not, strongly imply Davis had not informed Banfi
its shoe shipments were rejected as non-conforming before
Under the circumstances, however, that factual dispute about
notification need not be resolved here (as it could not on a
Rule 56 motion). After all, Davis' communication as to the
non-conformity of Banfi's shipments goes only to the question
of the proper exercise of Davis' right to reject the goods
under the Uniform Commercial Code ("UCC"), Ill.Rev.Stat. ch.
26, §§ 2-601 and 2-602(1).*fn6 But even if it is assumed Davis
did promptly notify Banfi the shoes were nonconforming, Davis'
later actions (1) were inconsistent with its rejection of the
goods and (2) constituted legal acceptance of those goods.
It is undisputed Davis (1) placed the Banfi shoe shipments
in its inventory, (2) offered the shoes for sale and (3) in
fact sold almost half of them by April 1983. S. Davis Dep.
23-25; Weingarten Dep. 19-23; R.Mem.Exs. 4, 9. Under the UCC
such exercise of ownership by Davis,*fn7 even after
rejection, was wrongful as to Banfi and constituted acceptance
of the goods when "ratified" by Banfi (which here would simply
mean Banfi's continued demand for payment). See Ill.Rev.Stat.
ch. 26, §§ 2-602(2)(a) and 2-606(1)(c); Ozite Corp. v.
F.C. Clothier & Sons Corp., 130 Ill. App.2d 716, 717-19,
264 N.E.2d 833, 834-35 (4th Dist. 1970).*fn8 Davis thereby became
obligated to pay for the goods. Ill.Rev.Stat. ch. 26, §
There is therefore no genuine issue of fact material to the
question of Davis' liability to Banfi. Banfi is entitled to a
judgment as a matter of law for $56,123 plus ...