Burrus v. Itek Corp., 76--261

• Citation: 360 N.E.2d 1168,46 Ill.App.3d 350,4 Ill.Dec. 793
• Decision Date: 11 March 1977
• Docket Number: No. 76--261,76--261
• Parties: , 4 Ill.Dec. 793, 21 UCC Rep.Serv. 1009 Sherman BURRUS, d/b/a Metropolitan Printers, Plaintiff-Appellee, v. ITEK CORPORATION, a Delaware Corporation, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1168

360 N.E.2d 1168

46 Ill.App.3d 350, 4 Ill.Dec. 793, 21

UCC Rep.Serv. 1009

Sherman BURRUS, d/b/a Metropolitan Printers, Plaintiff-Appellee, v. ITEK CORPORATION, a Delaware Corporation, Defendant-Appellant.

No. 76--261.

Appellate Court of Illinois, Third District.

March 11, 1977.

Robert L. Metzler, Clevenger, Metzler & Christie, Pekin, for defendant-appellant.

Carl Reardon, of Moehle, Reardon, Smith & Day, East Peoria, for plaintiff-appellee.

SCOTT, Justice.

After bench trial in the Circuit Court of Tazewell County plaintiff Sherman Burrus, d/b/a Metropolitan Printers, was awarded judgment and damages against the defendant Itek Corporation for breach of an implied warranty arising from the sale of a printing press. From that judgment and award of damages this appeal ensued.

The plaintiff is a job printer whose business is located in East Peoria under the business name of Metropolitan Printers. He has been in business since 1961 and has been concerned primarily with printing letterheads, envelopes, brochures and cards. In April of 1970 the plaintiff purchased a printing press from the defendant, the price of which was $5,068.88, but as the result of certain financing ultimately resulted in an expenditure of $7,006.08.

The plaintiff considered purchasing the press for a period of approximately two years prior to the actual purchase and then only after he had made a visit to Bloomington to personally watch the operation of an identical press. A representative of the defendant company, Mr. Nessel, assured the plaintiff that for the kind and quality of printing he was doing the press in question was the one which would satisfy and fulfill his needs. It was represented to be less time consuming, cheaper to operate and eliminated the need for certain negatives.

From the record it is clear that from the time the press was delivered to the plaintiff's place of business problems and difficulties were encountered almost continuously. Representatives of the defendant worked for several days in an effort to install the press and to get it operating properly. It was the testimony of the plaintiff that the press never did operate properly. His specific complaints were that it did not feed properly, it had paper jam ups, it failed to register properly (which is a process where one symbol is printed on top of another identical symbol without any visible overlap on the printed surface), that the machine streaked or smeared the printed surface, that it was not timed properly, produced crooked printing, was slow in printing and problems with loose or defective parts were ever present.

It is evident from the testimony adduced during the trial of this case that representatives of the defendant company, the plaintiff and his employees spent many hours in an effort to correct the deficiencies of the press and to get it to operate properly. One witness, a former employee of the defendant, testified that out of an eight hour working day the press operated properly not more than two hours.

It is apparent that sometime within sixty days after the plaintiff purchased the press he expressed a desire that it be replaced. Mr. Nessel, a salesman for the defendant company, recommended to his employer that it be replaced but his recommendation was not accepted.

The defense of the defendant was primarily based upon the proposition that the operators of the press in question were not skilled operators as to this particular piece of equipment and that the press did not receive proper maintenance. The primary operators were the plaintiff and a Mr. Wiese, who was also an instructor in the printing department at Illinois Central College.

In this appeal the defendant raises two issues, the first being whether the plaintiff sustained his burden of proof that an implied warranty existed in regard to the press and whether such warranty was breached. The second issue is whether the court properly assessed the correct amount of damages that plaintiff was entitled to recover.

As to the first issue we direct our attention to Ill.Rev.Stat.1975, ch. 26, par. 2--314, which provides:

'(1) Unless excluded or modified (Section 2--316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. * * *'

This statutory provision contains three elements which had to be present to support the existence of an implied warranty. First, we must have present 'goods' which fall within the purview of the statute; secondly, there must be a contract for the sale of the goods, and the seller must be a merchant engaged in selling such goods.

Turning to our Commercial Code (Ill.Rev.Stat.1975, ch. 26, par. 2--105) we find the following definition of goods:

'(1) 'Goods' means all things, including specially manufactured goods, which are movable at the time of identification to the contract for sale * * *.'

It is clear from the record that the press purchased by the plaintiff falls within this definition; it was movable and was in fact moved, and it was identified as being the press displayed in a defendant's brochure and like the one witnessed by the plaintiff in Bloomington.

A contract for sale includes both a present sale of goods and a contract to sell goods at a future time. A sale consists in the passing of title from the seller to the buyer for a price. See Ill.Rev.Stat.1975, ch. 26, par. 2--106(1). In the instant case the plaintiff offered to purchase a press, paid the necessary consideration, and received delivery of the machine. In short, the statutory requisites for a 'contract for sale' were present.

A merchant is a person who deals in goods of the kind or otherwise by his occupation holds himself out as having the knowledge or skill peculiar to the practices of the goods involved in the transaction. See Ill.Rev.Stat.1975, ch. 26, par. 2--104. We need not analyze the evidence and set forth a recital of the same in order to determine that the defendant corporation is a merchant. It is obvious that the defendant is a merchant since its business is to sell printing presses.

Finding no evidence of any exclusions or modifications we can only conclude that a warranty of merchantability was implied in respect to the printing press purchased by the plaintiff.

Having found that an implied warranty of merchantability existed we are next confronted with the question as to whether or not the plaintiff proved before the trial court that the same was breached.

We are of the opinion that the plaintiff did make proof of a breach of implied warranty. Again referring to our Commercial Code and in particular to Ill.Rev.Stat.1975, ch. 26, par. 2--314(2)(c) we find the following pertinent language:

'(2) Goods to be merchantable must be at least such as

(a) * * *

(b) * * *

(c) are fit for the ordinary purposes for which such goods are used; * * *'

The plaintiff purchased from the defendant a press for the purpose of doing custom or job printing. He testified that his business required high quality printing, yet there is an abundance of evidence that the machine which he purchased contained a number of specific defects. All of the witnesses but one testified that the printing press did not feed paper properly. The feeder mechanism caused paper jams in the press and this resulted in large accumulations of wasted or nonusable paper.

The record contains evidence consisting of testimony and exhibits that support plaintiff's contention that the press purchased by the plaintiff did not register properly. On jobs requiring the use of two colors the machine left blank or white spaces between the colors which destroyed the contiguous effect that such a press was supposed to provide. There is in the record further evidence of streaking, smearing, slow printing, crooked printing, timing problems and loose and defective parts.

All of the defects in the press purchased by the plaintiff are not present in other presses of the same type whether they be machines sold by other companies or the defendant company.

As we have previously stated, the defendant's defense was based primarily on improper maintenance of the press by the plaintiff and improper operation. The fact that the defects complained of were apparent immediately after delivery is strong evidence against a finding that the problems were caused by improper maintenance. See Curtis v. Murphy Elevator (E.D.Tenn.1976), 407 F.Supp. 940. In the instant case there is also testimony from an expert witness that the press was at all times adequately maintained.

We fail to find in the record any evidence of the operation of the press by incompetent individuals. The defendant in its brief acknowledges that Mr. Wiese could be considered an expert operator, yet the record reflects that Mr. Wiese encountered the same frustrating problems as were encountered by other operators.

It is true that the plaintiff made some modifications to the press, i.e., an extra water roller, a piece of wood and some tape. The defendant's witness testified that the addition of the extra roller would make no appreciable difference and that the attached piece of wood which modified the register board did not disturb the witness Sowa, who was a senior service representative for the defendant. His comment was to the effect that Itek Corporation the defendant, normally supplied something of that nature which did the same job. In the light of such testimony we do not believe that Erickson v. Sears Roebuck, 240 Cal.App.2d 793, 50 Cal.Rpt. 143, cited by the defendant, is applicable. In the instant case there was testimony by the defendant's own witness that the plaintiff's slight modifications would not have appreciably affected the operation of the press.

The defendant, while citing no authority, nevertheless argues strongly that...