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Bodine Sewer v. Eastern Illinois Precast

OPINION FILED MAY 21, 1986.

BODINE SEWER, INC., PLAINTIFF-APPELLEE,

v.

EASTERN ILLINOIS PRECAST, INC., DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Macon County; the Hon. James A. Hendrian, Judge, presiding.

JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:

The plaintiff-counterdefendant Bodine Sewer, Inc. (Bodine), filed suit against defendant-counterplaintiff Eastern Illinois Precast, Inc. (Eastern), in the Macon County circuit court requesting damages on the basis of alleged breaches of the implied warranties of fitness for a particular purpose (Ill. Rev. Stat. 1983, ch. 26, par. 2-315) and merchantability (Ill. Rev. Stat. 1983, ch. 26, par. 2-314), as well as alleged breaches of express warranty. The breaches of warranty were alleged to have occurred with respect to concrete pipe which Eastern provided Bodine for use on a sewer construction project in the city of Decatur, for which Bodine was the contractor.

In its counterclaim, Eastern sought to recover amounts allegedly owed Eastern by Bodine for materials which Eastern delivered for use on the Decatur sewer construction project. An amended version of Eastern's counterclaim alleged, inter alia, that Bodine had agreed to pay for materials supplied by Eastern in conformance with Eastern's "Standard Conditions of Sale" contained in Eastern's quotation forms. In affirmative defenses filed with its answer to Eastern's counterclaim, Bodine alleged that no one signed Eastern's quotation forms on Bodine's behalf so as to subject Bodine to Eastern's "Standard Conditions of Sale."

Because of the nature of the issues presented for review, a detailed recitation of all of the evidence presented at the bench trial of this cause is not necessary; those facts pertinent to each issue will be stated in the relevant portions of this opinion.

Following the submission of trial briefs by both parties, the circuit court found that Bodine was not bound by the "Standard Conditions of Sale" contained in Eastern's quotation forms because it did not execute the quotation forms; that even if the "Standard Conditions of Sale" were a part of the parties' contract, a purported disclaimer of warranties contained therein was ineffectual due to its inconspicuousness; that an "express warranty for a particular purpose" existed and Eastern breached that warranty; that Bodine rightfully refused continued deliveries from Eastern; and that Bodine was required to expend additional amounts to cover the cost of substitute materials. On this basis, the court entered judgment on Bodine's claim in the amount of $24,868.15 and entered judgment in the amount of $76,097.14 on Eastern's counterclaim. Only the judgment entered with respect to Bodine's claim is at issue in this appeal; Bodine has not cross-appealed from the judgment entered on Eastern's counterclaim.

• 1 Eastern first asserts that there is no evidence that it delivered damaged or defective pipe to Bodine. In the same section of its brief, Eastern states that, "[a]cceptance of the product is a waiver of any claims," citing section 2-607 of the Uniform Commercial Code (UCC) (Ill. Rev. Stat. 1983, ch. 26, par. 2-607), Frank's Maintenance & Engineering, Inc. v. C.A. Roberts Co. (1980), 86 Ill. App.3d 980, 408 N.E.2d 403, and Ozite Corp. v. F.C. Clothier & Sons Corp. (1970), 130 Ill. App.2d 716, 264 N.E.2d 833.

Considering the last proposition first, there is nothing in section 2-607 (Ill. Rev. Stat. 1983, ch. 26, par. 2-607), Frank's Maintenance, or Ozite which supports the quoted statement. In fact, the court in Frank's Maintenance explicitly stated that, "acceptance of the goods does not of itself preclude a suit for breach of warranty." Frank's Maintenance & Engineering, Inc. v. C.A. Roberts Co. (1980), 86 Ill. App.3d 980, 985, 408 N.E.2d 403, 406.

We also find no merit in Eastern's contention that Bodine did not establish that Eastern delivered damaged or defective pipe to Bodine's Decatur job site. All save four of the witnesses were employees or officers of one or the other of the parties. Of the nonpartisan witnesses, Leslie P. Jenkins, an engineering technician who was the city of Decatur's agent with respect to the sewer project, may perhaps be regarded as the witness with the least personal interest in the outcome of this litigation. Jenkins testified that although the city of Decatur's specifications called for pipe which was at least four days old before being loaded for delivery, most of the pipe furnished by Eastern was three days old when delivered. While at the job site, Jenkins on numerous occasions observed Eastern drivers break or crack concrete pipe while it was being unloaded. He observed pipe roll off of the trucks and hit curbs, thereby breaking the pipe's spigots, and he observed the arrival of seven pipes which were "breaking as they were coming off of the truck." Also, Jenkins had occasion to stand on a piece of 48-inch pipe after it had been unloaded by Eastern, and the spigot end broke off under his weight. (Jenkins weighs 210 pounds.) Additionally, Jenkins observed misalignment in 30-inch and 48-inch pipe delivered by Eastern. With respect to a final defective delivery of pipe on August 24, 1984, Jenkins testified that upon inspecting it, he discovered that pieces of the pipe could be removed with one's hand. In Jenkins' view, Eastern employees did not handle the pipe in a rough or abusive manner.

Corroborating Jenkins' testimony is that of Milton Sees, executive director of the Illinois Concrete Pipe Association, who testified on behalf of Eastern. Sees stated that an individual of Jenkins' weight standing on class III pipe (the lowest grade of 48-inch pipe which Bodine ordered from Eastern for use on the project) would not normally cause the pipe to break if it were of minimum strength. If pipe would break in that manner, or if one could pull it apart with his hands, that would indicate a problem with the pipe.

The third witness with no direct ties to either of the parties was Gerald R. Broom, vice-president and general manager of the Egyptian Concrete Company, which was one of Bodine's suppliers of concrete pipe for the Decatur sewer project after Bodine refused further deliveries from Eastern. Broom testified that Egyptian generally does not ship concrete pipe which is less than four days old, and that concrete pipe is generally required to meet the minimum strength requirements upon delivery. Although Broom would have been able to "live with" some of the pipe manufactured by Eastern which was chipped around its bell end, which he saw at the Decatur job site, he would probably have raised objections to concrete pipe which was in that condition.

The final witness not directly connected with any of the parties was J. William Cobberly, an associate of the Decatur consulting firm of Shaffer, Krimmel, Silver & Associates, Inc. At the request of Bodine, Cobberly tested concrete from some of the concrete pipes delivered by Eastern to Bodine's Decatur job site. All except one of the samples fulfilled minimum strength requirements. Cobberly acknowledged, however, that the test which he utilized is not specifically designed for concrete pipe, although such a test is available.

In sum, the testimony of those witnesses with few direct ties to either of the parties, considered as a whole, tends to support Bodine's contention that Eastern delivered defective concrete pipe for use on the Decatur sewer project, although the testimony of the officers and employees of the two parties generally supports the parties' respective positions with regard to this matter. Giving due regard to the role of the trier of fact as the sole judge of the credibility of witnesses (Kavale v. Morton Salt Co. (1928), 329 Ill. 445, 160 N.E. 752; In re Marriage of Ligas (1982), 110 Ill. App.3d 1, 441 N.E.2d 1277), we cannot say that under the circumstances here present, the trial court's implicit finding that Eastern delivered defective concrete pipe to Bodine is clearly contrary to the manifest weight of the evidence. Woolley v. Hafner's Wagon Wheel, Inc. (1961), 22 Ill.2d 413, 176 N.E.2d 757.

• 2 Eastern also asserts that Bodine was bound by the terms of Eastern's "Standard Conditions of Sale," which contain a disclaimer of all warranties as to materials sold by Eastern. Michael L. Erickson, Eastern's president, testified that Eastern's "Standard Conditions of Sale" appear on the reverse side of all of Eastern's quotation forms. There is some dispute as to whether a Bodine official signed one of Eastern's quotation forms on which materials ordered for the Decatur sewer project were listed and thus subjected Bodine to Eastern's "Standard Conditions of Sale" with respect to such materials. We need not, however, concern ourselves with this factual dispute, for we conclude that even if a quotation form containing Eastern's "Standard Conditions of Sale" was executed by a Bodine official, the purported disclaimer of warranties contained in the conditions of sale must fail due to its inconspicuousness.

Subsection 2-316(2) of the UCC (Ill. Rev. Stat. 1983, ch. 26, par. 2-316(2)) provides that in order for a disclaimer of warranties to be effective, it must be in writing and must be conspicuous. In the present case, Eastern's quotation forms contain on their face, in the smallest type utilized on that side of the quotation forms, a statement that "[t]his proposal" is subject to the "Standard Conditions of Sale" on the reverse side thereof. The portion of the "Standard Conditions of Sale" relating to disclaimer of warranties is printed only partially in capital letters, and those capital letters are the same size as capital letters appearing in other portions of the "Standard Conditions of Sale" on the reverse side of the quotation forms. Under these circumstances, Bodine may reasonably have concluded that the quotation forms were little more than statements of prices for the materials required for construction of the Decatur sewer project. Certainly there was nothing on the face of ...


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