Ozite Corp. v. F. C. Clothier & Sons Corp., Gen. No. 11249

CourtUnited States Appellate Court of Illinois
Citation264 N.E.2d 833,130 Ill.App.2d 716
Decision Date17 December 1970
Docket NumberGen. No. 11249
PartiesOZITE CORPORATION, a Corporation, Plaintiff-Appellant, v. F. C. CLOTHIER & SONS CORPORATION, a Corporation, Defendant-Appellee.

Carlon & Carlon, Normal, for plaintiff-appellant.

Fleming, Messman & Lapan, Bloomington, for defendant-appellee.


The Ozite Corporation, hereinafter referred to as 'seller', brought an action against the F. C. Clothier and Sons Corporation, hereinafter referred to as 'buyer', for goods delivered. From a denial of full judgment, plaintiff appeals.

The defendant, in September of 1966, had received $550.00 worth of padding for carpeting. The shipment consisted of twenty rolls. The buyer shortly after receiving the goods notified the salesman for the seller that the goods were defective and asked that they be reclaimed.

For some time thereafter, the buyer was billed for the goods and in turn the buyer complained to the salesman. The salesman indicated that it was a misunderstanding and would be straightened out in the near future. The goods were neither reclaimed nor paid for.

Later, the defendant sold $115.50 of the padding. When the balance of the padding was not reclaimed the defendant destroyed it during the summer of 1968.

Plaintiff then sued defendant for the full value of the padding.

The Circuit Court entered a judgment on behalf of the plaintiff in the amount of $115.50, but denied recovery for the value of the remaining padding. The plaintiff on appeal seeks judgment for the full value of the goods.

The plaintiff contends that full recovery should be allowed on the basis that the defendant failed to reject acceptance of the goods according to law. Further, since he destroyed them, he has responsibility to pay for them.

Defendant argues that there is no obligation to pay for the padding since notice was given that the goods were defective and that this constituted a valid rejection, and when they were not reclaimed, any further obligations were terminated.

The trial court, obviously, made a conscientious effort to do equity. However, the denial of a full judgment cannot stand. It is tempting to affirm the trial court's decision under these circumstances, but an affirmance would do violence to the statutes involved.

Section 2--602 of Chapter 26, Illinois Revised Statutes, 1965, provides:

'Manner and Effect of Rightful Rejection.

(1) Rejection of goods must be within a reasonable time after their delivery or tender. It is ineffective unless the buyer seasonably notifies the seller.

(2) Subject to the provisions of the two following sections on rejected goods (Sections 2--603 and 2--604),

(a) after rejection any exercise of ownership by the buyer with respect to any commercial unit is wrongful as against the seller; and

(b) if the buyer has before rejection taken physical possession of goods in which he does not have a security interest under the provisions of this Article (subsection (3) of Section 2--711), he is under a duty after rejection to hold them with reasonable care at the seller's disposition for a time sufficient to permit the seller to remove them; but

(c) the buyer has no further obligations with regard to goods rightfully rejected.'

It can be argued in earnest that the buyer gave reasonable notice of rejection and consequently it had no further duties with respect to the padding. The buyer's responsibilities with respect to the goods that are rejected are set forth in SECTION 2--603 OF CHAPTER 26, ILLINOIS REVISED STATUTES, 19651.

The defendant did not comply with that section, but proceeded to sell a portion of the goods and to destroy the balance. Under Section 2--602(2)(a), supra, the exercise of ownership of these goods is wrongful as to the seller. This is precisely what the defendant did.

Once notice of rejection was made, he should have complied with the provisions of Section 2--603, supra. He also has options available to him to disposing of the goods in SECTION 2--604, CHAPTER 262, Illinois Revised Statutes. Again, the defendant did not avail itself of these provisions.

Also, the conduct of the defendant constituted an acceptance under the provisions of Section 2--606(1)(c), Chapter 26, Illinois Revised Statutes, which state:

'What Constitutes Acceptance of Goods.

(1) Acceptance of goods occurs when the buyer

(c) does any act inconsistent with the seller's ownership; but if such act is wrongful as against the seller it is an acceptance only if ratified by him.'

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7 cases
  • Frank's Maintenance & Engineering, Inc. v. C. A. Roberts Co., 79-1854
    • United States
    • United States Appellate Court of Illinois
    • July 24, 1980
    ...(1) that any action is barred by plaintiff's act in scrapping the goods, citing Ozite Corp. v. F. C. Clothier & Sons Corp. (1970), 130 Ill.App.2d 716, 264 N.E.2d 833; and (2) the plaintiff is barred from recovering consequential damages by paragraph 11 of the purchase Plaintiff denied that ......
  • United Air Lines, Inc. v. Conductron Corp., 77-1497
    • United States
    • United States Appellate Court of Illinois
    • February 26, 1979
    ...concerning proximate cause of the fire and do not support defendants' contentions. Ozite Corp. v. F. C. Clothier & Sons Corp. (1970), 130 Ill.App.2d 716, 264 N.E.2d 833; McKnight v. Bellamy (1970), 248 Ark. 27, Page 1283 [26 Ill.Dec. 355] 449 S.W.2d 706 and William F. Wilke, Inc. v. Cummins......
  • Bodine Sewer, Inc. v. Eastern Illinois Precast, Inc., 4-85-0688
    • United States
    • United States Appellate Court of Illinois
    • May 21, 1986
    ...(1980), 86 Ill.App.3d 980, [143 Ill.App.3d 923] 42 Ill.Dec. 25, 408 N.E.2d 403, and Ozite Corp. v. F.C. Clothier & Sons Corp. (1970), 130 Ill.App.2d 716, 264 N.E.2d Considering the last proposition first, there is nothing in section 2-607 (Ill.Rev.Stat.1983, ch. 26, par. 2-607), Frank's Mai......
  • S.A.M. Electronics, Inc. v. Osaraprasop
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • January 12, 1999
    ...1983) (selling half of an order of shoes to customers amounted to acceptance of the shoes); Ozite Corp. v. F.C. Clothier & Sons Corp., 130 Ill.App.2d 716, 718, 264 N.E.2d 833, 834-35 (1970) (giving notice of rejection of carpet padding and subsequently selling part of said padding amounted ......
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