Appeal from the Circuit Court of Marion County; the Hon.
Ronald A. Niemann, Judge, presiding.
JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
Plaintiffs-purchasers brought suit for breach of express oral warranty and implied warranty of merchantability on a contract for sale of a Caterpillar 955K tractor. Judgment in the amount of $23,950 was entered against defendant-seller upon the jury's general verdict in the circuit court of Marion County. Defendant appeals, contending it was entitled to judgment as a matter of law, arguing it was entitled to summary judgment, directed verdict and judgment n.o.v. by virtue of a disclaimer of warranty printed on the invoice which accompanied the sale.
Smith and Session, as partners, purchased the tractor from Chartrand Equipment Company on December 11, 1981. The sale followed several visits to defendant's place of business, at which time casual inquiries regarding secondhand equipment developed into discussions about the 955K, which in turn developed into negotiation as to the terms of sale. The parties appear to be in agreement that the contract terms with respect to price, trade-in value on an HD10 tractor, additional work to be performed on the 955K, including undercarriage replacement and roll cage installation, method of payment, estimated time of delivery and place of delivery were all agreed upon prior to the invoice's being prepared. Serious engine problems developed; damages are not an issue.
The invoice, according to plaintiffs' position, represents little more than a bill of sale, evidence that the sale took place. They maintain that defendant's president, William Chartrand, sold the tractor with an express warranty against "majors" for 1,000 engine hours. Plaintiffs further maintain that the invoice disclaimer is ineffective to disclaim the alleged express warranty and also ineffective to exclude the implied warranty of merchantability contained in section 2-314 of the Uniform Commercial Code (Ill. Rev. Stat. 1981, ch. 26, par. 2-314).
Defendant's position is that the invoice represents a final expression of the parties' agreement with respect to all essential terms and with particular regard to warranties. Defendant maintains that no express warranty was ever given, that evidence of such a warranty could not be proved by parol or extrinsic evidence, and that the implied warranty of merchantability was effectively excluded by the following invoice language:
"Since the machinery sold is second hand, seller makes no warranty of quality or fitness for any purpose and sells the goods on an `AS IS' basis. I acknowledge receipt of this statement /s/ Gregory C. Session."
Defendant here, in its prayer for judgment n.o.v. or a new trial, places principal emphasis on the trial court's alleged error in accepting parol evidence to negate or vary this language on the written invoice.
• 1 We first consider defendant's contention that the trial court erred in refusing to grant it summary judgment. In support of its contention, defendant points to plaintiffs' failure to respond to its motion for summary judgment and supporting affidavit by way of counteraffidavits or "similar documents" which would raise genuine issues as to material facts. Plaintiffs are not required, however, to file counteraffidavits. (Carruthers v. B.C. Christopher & Co. (1974), 57 Ill.2d 376, 381, 313 N.E.2d 457, 460; Ill. Rev. Stat. 1981, ch. 110, par. 2-1005(c).) While it is true plaintiffs failed to respond to defendant's motion with contradictory material, there remained genuine issues as to material facts. The trial court must consider the pleadings, depositions, admissions, affidavits, and exhibits to determine whether the moving party is entitled to judgment as a matter of law. Even though the party opposing the motion fails to file counteraffidavits, the movant is not entitled to summary judgment unless the affidavits establish the right to a judgment as a matter of law. (Spancrete of Illinois, Inc. v. Brickman (1979), 69 Ill. App.3d 571, 576, 388 N.E.2d 47, 51.) Here defendant's motion and affidavit merely contradicted factual allegations plaintiffs, by their verified complaint, had placed at issue. Plaintiffs' depositions, taken prior to defendant's motion, each provide evidentiary facts which directly contradict defendant's allegations.
For example, in William Chartrand's affidavit it is stated that at no time did he as defendant's agent make any warranties regarding the tractor, that all warranties express or implied were specifically disclaimed when it was sold "as is," and that plaintiff Session acknowledged this in writing. Plaintiffs, on the other hand, in their verified complaint and depositions, stated that William Chartrand as defendant's agent made an express oral warranty that the engine would perform for 1,000 hours. In his deposition, Session further testified that his name on the invoice was not his signature, and Smith in his deposition testified that he did not remember Session's acknowledging receipt of the invoice with the disclaimer. Other sworn statements tended to establish significant contradictory assertions of fact when compared to defendant's conclusory affidavit.
• 2 It is not evident that the right to summary judgment has been established. (See, e.g., Burks Drywall, Inc. v. Washington Bank & Trust Co. (1982), 110 Ill. App.3d 569, 574, 442 N.E.2d 648, 653, and cases therein cited.) The trial court did not err in denying defendant's motion for summary judgment.
Defendant contends the invoice was the final agreement of the parties containing the terms of sale. As to the implied warranty of merchantability, defendant argues that the invoice disclaimer language alone was sufficient to warrant a directed verdict on that count of the complaint. As to the alleged express warranty, defendant argues that since the invoice represented a final expression of the parties' agreement, under section 2-202 of the Uniform Commercial Code (Ill. Rev. Stat. 1981, ch. 26, par. 2-202), parol or extrinsic evidence is inadmissible to vary or contradict its plain meaning. Thus, interpretation of the face of the invoice document being solely a question of law, defendant was entitled to a directed verdict on that count. Bowers Manufacturing Co. v. Chicago Machine Tool Co. (1983), 117 Ill. App.3d 226, 453 N.E.2d 61.
William Chartrand testified that his company never gave a warranty on a sale of used equipment. He added, however, that some of the time he did give a warranty. In this case, he testified, the parties had a discussion of manufacturer's warranties regarding the new undercarriage. They also had a discussion about a warranty he thought might be obtainable from Caterpillar, but he did not warrant the engine for 1,000 hours. Chartrand emphasized his reliance on the invoice disclaimer language, although he did acknowledge in his testimony that plaintiffs were "very persistent" about getting some kind of warranty on the tractor. He testified that he told plaintiffs on several occasions that the tractor carried no warranties whatsoever.
Plaintiffs' evidence, on the other hand, if believed, establishes that an express warranty was given by William Chartrand. Session testified that plaintiffs asked Chartrand for a warranty. He testified that Chartrand said he usually did not warrant a used tractor, but since Chartrand had just completed repair work on the engine, he would warrant it for major repairs for 1,000 hours of operating time. Smith's testimony was the same in substance. David Uhls, who testified that he was present when the plaintiffs were negotiating with Chartrand, also testified that William Chartrand expressly warranted the tractor for 1,000 hours before an agreement was reached on the purchase of the tractor.
Two provisions of the Uniform Commercial Code are particularly applicable to our disposition of this case. Section 2-202 of the Code (Ill. Rev. ...