Boysen v. Antioch Sheet Metal, Inc.
| Decision Date | 10 January 1974 |
| Docket Number | No. 72--247,72--247 |
| Parties | , 14 UCC Rep.Serv. 120 Estelle BOYSEN, Plaintiff and Appellant, v. ANTIOCH SHEET METAL, INC. and Ray Hartman, Defendants and Appellees. |
| Court | United States Appellate Court of Illinois |
Jacobs & Clark, Antioch, for defendants-appellees.
Plaintiff filed a Small Claims action to recover $925 plus costs for the alleged 'defective installation of an inadequate furnace'. After a hearing, the trial court found in favor of the defendants and entered the judgment from which plaintiff appeals.
Plaintiff contends that she gave repeated and continuing notices of defects which amounted to notice of her revocation of acceptance; and that her removal and storage of the furnace was in compliance with the relevant provisions of the Uniform Commercial Code. Ill.Rev.Stat.1971, ch. 26, pars. 2--607, 2--608.
The Uniform Commercial Code expressly provides several remedies for a purchaser to recover damages after accepting goods (Ill.Rev.Stat.1971, ch. 26, pars 2--711(1), 2--714(1)), including a provision that a buyer may recover the purchase price and the additional cost of replacement of defective goods ('cover'). (Ill.Rev.Stat.1971, ch. 26, par. 2--712.) However, these remedies only accrue when a purchaser has justifiably revoked acceptance; and they are not effective until the buyer sufficiently notifies the seller. (Ill.Rev.Stat.1971, ch. 26, par. 2--608(2).) Grossman v. D'Or (1968), 98 Ill.App.2d 198, 201--203, 240 N.E.2d 266.
To revoke acceptance the defect complained of must substantially impair the value of the goods. (Collum v. Fred Tuch Buick (1972), 6 Ill.App.3d 317, 321, 285 N.E.2d 532; Overland Bond and Inv. Corp. v. Howard (1972), 9 Ill.App.3d 348, 359, 292 N.E.2d 168.) Whether revocation is justified and whether sufficient notice has been given within a reasonable time are ordinarily questions of fact to be determined by the circumstances of the particular case. See Overland Bond and Inv. Corp. v. Howard (1972), 9 Ill.App.3d 348, 359, 292 N.E.2d 168. See also Marine Mart, Inc. v. Pearce (Ark.1972), 252 Ark. 601, 480 S.W.2d 133, 137; and Hays Merchandise, Inc. v. Dewey (1970), 78 Wash.2d 343, 474 P.2d 270, 273.
Notice of revocation of acceptance need not be in any particular form or use particular words if the buyer has adequately informed the seller that he does not want the goods and does not with to retain them. Overland Bond and Inv. Corp. v. Howard (1972), 9 Ill.App.3d 348, 358, 292 N.E.2d 168; Hays Merchandise, Inc. v. Dewey (1970), 78 Wash.2d 343, 474 P.2d 270, 273.
Application of these legal principles to the instant case, however, is frustrated because the record before us contains no transcript of the trial proceedings. Nor have the parties prepared a proposed report of proceedings from the best available sources, or agreed on a statement of facts in accordance with Supreme Court Rule 323 (Ill.Rev.Stat.1971, ch. 110A, par. 323(c), (d)). Instead, we are directed to the transcript of the arguments on the motion for a new trial in which the court and counsel in colloquy made partial references to their recollection of trial proceedings.
A motion for a new trial cannot take the place of testimony heard at trial. (Hoffman v. Wilson (1965), 60 Ill.App.2d 396, 401, 208 N.E.2d 607.) The burden of preserving evidence rests with the party who appeals. (Skaggs v. Junis (1963), 28 Ill.2d 199, 202, 190 N.E.2d 731.) Consequently any doubt arising from an incomplete record will be resolved against appellant. In re Annexation to Village of Oak Brook (1968), 91 Ill.App.2d 27, 33, 234 N.E.2d 555.
From the limited record, we find significant the memorandum of opinion filed by the trial court when it denied plaintiff's post-trial motion, stating:
* * * 'The evidence in this case indicated that the Plaintiff informed the Defendant that something was wrong with the furnace, then without any further notice to the Defendant, the Plaintiff went out in the market and purchased a new...
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