Phil Jacobs Co. v. Mifflin

Citations: 320 N.E.2d 329; 23 Ill. App. 3d 999; 16 U.C.C. Rep. Serv. (West) 407; 1974 Ill. App. LEXIS 1948Docket: 72-195

Court: Appellate Court of Illinois; October 8, 1974; Illinois; State Appellate Court

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

Phil Jacobs Company, Inc. (plaintiff) sought to recover $1,718.40 from Mildred Mifflin (defendant), who operated the Gaiety Shop, for goods delivered between July 1969 and January 1970. The sales process involved the plaintiff's representative, James Hybarger, visiting the defendant's store quarterly, where he would fill out order forms based on consultations with Mifflin. Two disputed orders were placed: one on August 6, 1969, for $736.75 via telephone without Mifflin's usual signature, and another on November 5, 1969, for $952.20, which involved disagreements about specific items.

Mifflin did not testify regarding the first transaction, and evidence indicated she did not sign the order form. The second order also lacked specific quantities at the time of signing. Mifflin claimed she was frequently over-supplied and had previously expressed to Hybarger her desire to limit shipments after receiving too much merchandise. Documentation showed that the plaintiff's credit manager acknowledged Mifflin's complaints about oversupply and advised limiting her shipments. A subsequent letter from Mifflin requested no further clothing shipments after receiving a significant excess of goods.

The court reversed and remanded the decision, indicating that the evidence supported Mifflin's claims of being over-supplied and her attempts to return unsold merchandise.

In March 1970, following a period of dispute, the plaintiff's credit manager informed Mr. Hybarger that shipments to Mrs. Mifflin would cease until a partial balance was paid, with a maximum limit of $250 per month for future shipments. On July 1, 1970, the defendant reiterated concerns about overshipments and indicated that excess goods were being held for return. At trial, Mrs. Mifflin acknowledged the goods but could not confirm if they were ordered or delivered during the disputed timeframe of July 1969 to January 1970. In 1971, she requested the reinstatement of service from the plaintiff. The trial court ruled in favor of the defendant without providing an opinion, prompting the plaintiff to appeal.

The plaintiff contended that the defendant failed to meet the burden of proof regarding an affirmative defense, which claimed items were shipped without being ordered, that the plaintiff had been notified of these overshipments, and that the defendant had offered to return the items. Citing various cases, the plaintiff argued that the burden of proof lies with the party asserting an affirmative defense. The evidence appeared to support the plaintiff’s position, as the defendant did not demonstrate that specific items were unordered or that the plaintiff had been notified about overshipments.

The defendant countered that she did not rely on an affirmative defense but merely denied acceptance of the goods under Section 2-607 of the Uniform Commercial Code. She invoked a special defense per Section 43 of the Civil Practice Act, which requires that any defense likely to surprise the opposing party must be clearly articulated in the pleadings. The definition of an affirmative defense involves introducing new matter that defeats the opposing party's claim. The court previously ruled that denying an agency relationship did not constitute an affirmative defense, supporting the defendant's assertion that her denial of acceptance was not an affirmative defense.

Despite the classification of the defense, the evidence did not substantiate the defendant's claim. According to Section 2-606 of the Uniform Commercial Code, acceptance occurs when the buyer notifies the seller of acceptance, fails to effectively reject the goods, or acts inconsistently with the seller's ownership. The defendant did not specifically inform the plaintiff about non-conformity in relation to particular items but only made general complaints about overshipments. Although she claimed to hold goods not ordered for return, she could not specify that these items had been shipped during the disputed period.

Lack of evidence exists regarding the disposition of items allegedly overshipped, but it is reasonable to assume they were offered for sale if not held for reshipment, which suggests acceptance and inconsistency with the seller's ownership. The defendant had previously complained about overshipments but continued to pay for those goods, indicating her dissatisfaction did not lead to terminating the relationship with the plaintiff. The plaintiff argues that since the defendant paid for all goods received before July 1969, she cannot claim they did not conform to the contract. Citing relevant case law, the plaintiff contends that one cannot accept and pay for goods and later claim defects as a defense in subsequent transactions. The focus here is on $1,718.40 worth of goods shipped between July 1969 and January 1970. The defendant asserts the trial court's factual findings should not be reversed unless found manifestly erroneous. However, the plaintiff established a strong prima facie case for liability, while the defendant’s sole defense—rejecting the extra merchandise—lacked evidence of effective rejection. Consequently, the trial court erred in ruling for the defendant, leading to a reversal of that judgment and remanding the case for a judgment in favor of the plaintiff for $1,718.40 plus costs. Justice George J. Moran did not participate in this decision.