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09/14/89 Alberts Bonnie Brae, Inc., v. Don Ferral

September 14, 1989

ALBERTS BONNIE BRAE, INC., PLAINTIFF-APPELLEE

v.

DON FERRAL, D/B/A THE DEAN HILLS TREE FARM, DEFENDANT-APPELLANT

THIS CONTRACT ACTION IS GOVERNED BY THE UNIFORM COMMERCIAL CODE (CODE) (ILL. RE

v.

STAT. 1987, CH. 26, PAR. 1-101 ET SEQ.). THE CODE PROVIDES:



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

544 N.E.2d 422, 188 Ill. App. 3d 711, 135 Ill. Dec. 926 1989.IL.1422

Appeal from the Circuit Court of Logan County; the Hon. David L. Coogan, Judge, presiding.

APPELLATE Judges:

JUSTICE KNECHT delivered the opinion of the court. McCULLOUGH, P.J., and STEIGMANN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KNECHT

Plaintiff Alberts Bonnie Brae, Inc. (Brae), an Illinois corporation, sold defendant Don Ferral (Ferral) a piece of used nursery equipment. Ferral contended the equipment was defective and stopped payment. Brae sued to recover the sale price and prevailed. Ferral appeals and we affirm.

This action began on August 5, 1988, when plaintiff Brae filed a contract action against defendant Ferral, doing business as The Dean Hills Tree Farm, to recover the sale price of the used nursery equipment. Ferral responded with an affirmative defense based on an alleged breach of both express and implied warranties concerning the nursery equipment. On November 29, 1988, after a bench trial the Logan County circuit court entered judgment in favor of plaintiff for the sale price in the amount of $12,500 plus costs. Ferral then filed a motion to vacate and reconsider. On January 20, 1989, after a hearing, the circuit court denied the motion. Ferral filed a timely notice of appeal.

In 1988, to meet business demands, Ferral decided to mechanize the tree extraction process in his nursery. He contacted Wayne Alberts (Alberts), president of Brae, regarding a sale advertisement for some used nursery equipment. The advertisement offered a tree spade mounted on an articulated tractor for the price of $12,500. The advertisement indicated the tree spade had "dug less than 400 trees" and the tractor engine had been "completely overhauled."

On March 13, 1988, after Ferral made a brief on-site inspection, he again contacted Alberts to inform him he would purchase the equipment. In turn, Alberts agreed to promptly deliver the equipment, without charge, to Ferral at his nursery. The prompt delivery was important to Ferral because of a large order for trees. On March 15, 1988, after Alberts had unloaded the equipment at the nursery, Ferral requested he stay and demonstrate its operation to his employees. Alberts then used the tree spade to dig up several varieties of evergreen trees. At this demonstration, Ferral requested Alberts adjust the placement and spacing of the individual blades on the tree spade. With the assistance of a nursery employee, Alberts made minor adjustments to the equipment in accordance with the recommendations of the manufacturer. Ferral approved these adjustments and issued Alberts a check for the sum of $12,500.

After operating the equipment on the next day, Ferral determined the root systems of the trees were damaged in extraction thus preventing commercial resale for transplantation. Unable to make further adjustments in the equipment, he stopped payment on the issued check and sent written notice of contract revocation to Alberts. On March 18, 1988, Ferral attempted, without success, to return the equipment to Alberts. Shortly thereafter, Ferral returned the used equipment to the manufacturer and purchased new equipment for the sum of $12,300.

The issue on appeal is whether Ferral established any breach of warranty as an affirmative defense.

"Acceptance of goods by the buyer precludes rejection of the goods accepted and if made with knowledge of a non-conformity cannot be revoked because of it . . . but acceptance does not of itself impair any other remedy provided by this Article for non-conformity." (Ill. Rev. Stat. 1987, ch. 26, par. 2-607(2).)

(See also Ill. Rev. Stat. 1987, ch. 26, par. 2-608(1).) Therefore, where the sold goods are somehow defective, the buyer may plead breach of warranty (see Ill. Rev. Stat. 1987, ch. 26, pars. 2-313, 2-314, 2-315) as an affirmative defense in a contract action.

At trial, Ferral maintained Alberts had breached an express warranty as to the condition of the used nursery equipment. (Ill. Rev. Stat. 1987, ch. 26, par. 2-313.) In contrast to the sales advertisement, Ferral alleged the tree spade had actually been used to dig more than 400 trees. To support this allegation, Ferral called two witnesses, a nursery employee and a sales representative for the manufacturer, to testify to the mechanical defects in the nursery equipment. Even without discounting the credibility of these witnesses for bias, their testimony is not sufficient to prove any breach of this express warranty. First, the nursery employee had no previous experience in operating or repairing a tree spade. Second, the sales representative testified the tree spade did not have any device to record the number of uses of the equipment. The sales representative also testified the defects in the tree spade could be attributed, in part, to ...


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