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01/08/76 MICHIGAN SUGAR COMPANY v. JEBAVY-SORENSON

January 8, 1976

MICHIGAN SUGAR COMPANY
v.
JEBAVY-SORENSON ORCHARD COMPANY



Appeal from Mason, Charles A. Wickens, J.

Leave to appeal denied, 396 Mich .

Danhof, P. J., and Quinn and D. E. Holbrook, Jr., JJ.

SYLLABUS BY THE COURT

1. Appeal and Error -- Trial Court -- Findings of Fact -- Court Rules.

A trial court's finding of fact will not be reversed on appeal unless clearly erroneous (GCR 1963, 517.1).

2. Sales -- Implied Warranty of Merchantability -- Inspection -- Acceptance of Goods -- Statutes.

An inspection of goods by the buyer does not exclude the implied warranty of merchantability as to a defect which the inspection revealed where the inspection occurred after the buyer's acceptance (MCLA 440.2316[3] ; MSA 19.2316[3] ).

3. Sales -- Defective Goods -- Rejection of Goods -- Foreign Matter -- Damages -- Statutes.

A food processor cannot recover lost profits from its supplier of sugar, after a customer of the food processor has rejected many of the diced frozen apples he had contracted to buy, where the food processor knew the sugar contained pan scale and he knew or should have known that the apples would be rejected if they contained any foreign matter (MCLA 440.2715[2] ; MSA 19.2715[2] ).

4. Sales -- Defective Goods -- Remedies -- Notification of Breach -- Commercially Reasonable Time -- Statutes.

A buyer of defective sugar was barred from any remedy because he failed to notify the seller of the breach within a commercially reasonable time where the buyer discovered pan scale in 800 bags of sugar in November, 1969, and although he had 68 bags exchanged, the buyer did not notify the seller that the remaining 732 bags were defective until May, 1971, after the buyer had used the sugar in a food product (MCLA 440.2607[3] ; MSA 19.2607[3] ).

The opinion of the court was delivered by: Per Curiam

Complaint by Michigan Sugar Company against Jebavy-Sorenson Orchard Company to collect the purchase price of sugar supplied to defendant. Counterclaim by defendant for damages for breach of an implied warranty. Partial summary judgment for plaintiff on its claim. Judgment for defendant on the counterclaim. Plaintiff appeals.

Michigan Sugar Company instituted an action to collect several outstanding invoices for sugar that it supplied Jebavy-Sorenson Orchard Company. Jebavy-Sorenson filed a counterclaim claiming a breach of an implied warranty. MCLA 440.2314; MSA 19.2314, MCLA 440.2315; MSA 19.2315. A partial summary judgment was granted Michigan Sugar as to its claim and the matter proceeded to trial on Jebavy-Sorenson's counterclaim. Following a bench trial the trial court ...


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