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10/21/88 Abatron, Inc., v. Fulton Contracting Company

October 21, 1988

ABATRON, INC., PLAINTIFF AND COUNTERDEFENDANT-APPELLEE

v.

FULTON CONTRACTING COMPANY, DEFENDANT AND COUNTERPLAINTIFF-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

530 N.E.2d 76, 175 Ill. App. 3d 692, 125 Ill. Dec. 158 1988.IL.1561

Appeal from the Circuit Court of Kane County; the Hon. Patrick J. Dixon, Judge, presiding.

APPELLATE Judges:

JUSTICE WOODWARD delivered the opinion of the court. LINDBERG, P.J., and UNVERZAGT, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOODWARD

Following a bench trial, the trial court entered an order granting judgment in the amount of $2,740.19 in favor of plaintiff and counter-defendant, Abatron, Inc., and against defendant and counterplaintiff, Fulton Contracting Co., and denying Fulton's counterclaim. Fulton appeals.

On appeal, Fulton raises the following issues: whether the trial court's finding that Fulton did not sustain its burden of proof as to the conforming epoxy materials is against the manifest weight of the evidence; whether the trial court erred in finding that the epoxy materials were irrevocably accepted by Fulton; whether the trial court erred in finding that Abatron did not breach its express and implied warranties made to Fulton; and whether Fulton is entitled to cancel the sale and recover its damages caused by plaintiff's tender of nonconforming goods. We affirm.

From the pleadings on file and the testimony at trial, the following facts were presented. Fulton is engaged in the electrical contracting business. It constructed a truck facility for servicing its trucks. A wash bay, approximately 40 feet by 15 feet, was constructed for the cleaning of Fulton's trucks and road equipment. When the construction of the wash bay was completed, Fulton found that the pitch in its concrete floor did not have sufficient fall or slope to permit normal water drainage into a drain trough which had been installed in the center of the floor. Frank Kehoe, vice-president of Fulton, instructed Jim Haberkost, the purchasing agent, to obtain appraisals of how to correct the problem.

Eventually, the decision was made to purchase an epoxy product sold under the trade name of Abocrete which was manufactured and sold by Abatron. Kehoe instructed Haberkost to obtain a sample of the Abocrete and further information on it. Fulton received two cans of epoxy materials from Abatron, one marked can A and the other can B. John Vlasnik, a shop foreman at Fulton, mixed the sample cans into a blend of epoxy with sand, using the formula one part epoxy to three parts of sand, i.e., a gallon and one-half of sand was mixed with one-half gallon of the epoxy blend. Vlasnik found that the product adhered well and had a hard finish. A decision was made to purchase the Abocrete product.

According to Jim Haberkost, he also talked to Marsha Caporaso, the secretary/treasurer of Abatron, about the problem with the wash bay on more than one occasion prior to the delivery of the product to Fulton. He also discussed the situation with Beth Jones at Abatron. (At trial, it was revealed that "Beth Jones" was not a real person but a name used by Abatron for answering customer inquiries.) While Haberkost had some general knowledge of installation of epoxy materials, he relied on Marsha Caporaso's recommendation; he had been referred to her for technical assistance. Haberkost also received various brochures and instructions from Abatron concerning the product. Haberkost denied receiving materials concerning coating and resurfacing floors with Abatron epoxies.

Master Tile Company was hired by Fulton to install the Abocrete in Fulton's wash bay. On June 9, 1987, John McBean, the installer, opened the packages of Abocrete which had been delivered a few days before. The contents of the package consisted of cans labeled "Part A" and "Part B." Part A was a gallon container, and part B was a quart container. Part A bore a label giving the following information about the product.

'SURFACE PREPARATION.

Abocrete offers superb adhesion on surfaces that are sound, clean and dry, especially if they are washed, sandblasted or scarified. Oil, grease, wax or old paint can prevent adhesion. They must be removed with detergents, solvents or strippers. Laitance (deceptively sound-looking surface of new concrete) must be removed with sandblasting or 10% muriatic acid treatment. After treating, the floor must be rinsed, dried and vacuumed. Thin cracks should be deepened and enlarged enough to facilitate filling with the epoxy grout.

MIXING.

Remove the contents (sand and the 2 cans) from the 5-gallon pail. Empty the 2 cans (A and B) into the 5-gallon pail and mix the A and B liquids thoroughly with a stick, paddle or with a paint stirrer attached to a power drill. Then mix the sand in, about 1-3 minutes after mixing has started. Concrete powder or pigments can be added to obtain the desired color. Additional coarse sand, chips, gravel or pebbles can be added (as long as they are clean and dry) to increase the total volume up to 10 times. The Aì blend can also be spread with brush, squeegee or paint roller as a clear coating without sand.

Mix no more than can be used in 20-40 minutes. When only part of the kit is needed, pour the needed amount of A (resin) into a smaller container and mix it with the corresponding amount of B (hardener) in the ratios indicated on the can label, add the desired amount of sand, and save the rest of the unblended kit in the 5-gallon pail for future use. When properly stored in the original containers, A and ...


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