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LORENZO BANFI DI BANFI RANZO v. DAVIS CONGRESS SHOPS

United States District Court, Northern District of Illinois, E.D


July 25, 1983

LORENZO BANFI DI BANFI RENZO & CO., PLAINTIFF,
v.
DAVIS CONGRESS SHOPS, INC., D/B/A DAVIS FOR MEN, ET AL., DEFENDANT.

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 August 16.

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, § 2-607(1).

Conclusion

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 interest from the due dates of Banfi's invoices.*fn9


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