Despite Grobark, it is clearly established in Illinois today that jurisdiction may be found under section 17(1)(a) although the defendant was never physically present in Illinois. Willis v. West Kentucky Feeder Pig Co. (1971), 132 Ill. App.2d 266, 265 N.E.2d 899; Cook Associates, Inc. v. Colonial Broach Machine Co. (1973), 14 Ill. App.3d 965, 304 N.E.2d 27; Colony Press, Inc. v. Fleeman (1974), 17 Ill. App.3d 14, 308 N.E.2d 78; First Professional Leasing Co. v. Rappold (1974), 23 Ill. App.3d 420, 319 N.E.2d 324; Ward v. Formex, Inc. (1975), 27 Ill. App.3d 22, 325 N.E.2d 812; Tabor Co. v. McNall (1975), 30 Ill. App.3d 593, 333 N.E.2d 562, appeal denied (1975), 61 Ill.2d 600; Citizens Bank Trust Co. v. Pittman (1977), 52 Ill. App.3d 137, 367 N.E.2d 265; Volkswagen Insurance Co. v. Whittington (1978), 58 Ill. App.3d 621, 374 N.E.2d 954; International Merchandising Associates, Inc. v. Lighting Systems, Inc. (1978), 64 Ill. App.3d 346, 380 N.E.2d 1047; and see Koplin v. Thomas, Haab Botts (1966), 73 Ill. App.2d 242, 249 N.E.2d 646, appeal denied (1967), 35 Ill.2d 629. β’ 9 It is clear from Tabor Co. v. McNall (1975), 30 Ill. App.3d 593, 333 N.E.2d 562, appeal denied (1975), 61 Ill.2d 600, and Willis v. West Kentucky Feeder Pig Co. (1971), 13
Moreover, performance of the contract was to occur in Illinois, since delivery of the grain was to be at La Salle, Illinois. This court has held that similar contracts justified personal jurisdiction in several recent decisions. See, for instance, First Professional Leasing Co. v. Rappold, 23 Ill. App.3d 420, 319 N.E.2d 324, and Willis v. West Kentucky Feeder Pig Co., 132 Ill. App.2d 266, 265 N.E.2d 899. β’ 2 The McNalls' second contention, that of estoppel by verdict, was waived when they failed to raise the issue in the trial court.
We conclude that Farmers Hybrid waived strict compliance with the 30-day condition precedent in the contract by its conduct in responding to the plaintiffs' oral complaint, which was made within the 30-day period. This case must be distinguished from Willis v. West Kentucky Feeder Pig Co. (1971), 132 Ill. App.2d 266, 265 N.E.2d 899, relied upon by Farmers Hybrid and discussed by the trial court. In Willis, the contract required that if the hogs became ill, a veterinarian must be contacted within seven days of delivery before the defendant would make settlement for the loss of the pigs.
Instead, it weighed the evidence and determined the actions of the buyer had not had an appreciable effect on the operation of the press, noting that evidence of defects in the goods occurring immediately after delivery is strong proof that the defects were caused by improper design rather than buyer misuse. We do not read Willis v. West Kentucky Feeder Pig Co., 132 Ill.App.2d 266, 265 N.E.2d 899 (1971), a case heavily relied upon by the Sellers, as standing for this proposition. In Willis the buyer purchased a load of feeder pigs which were infected with cholera.
Under the UCC, a buyer cannot bring a claim about implied warranties when it had an opportunity to inspect that product and should have discovered any defects. SeeTrans-Aire Int'l, Inc. v. Northern Adhesive Co. , 882 F.2d 1254, 1259 (7th Cir. 1989) (granting summary judgment to the seller when the buyer "clearly tested the samples as fully as it desired"); Budnick Converting, Inc. v. Nebula Glass Int'l, Inc. , 866 F. Supp. 2d 976, 1000 (S.D. Ill. 2012) (granting summary judgment to the seller when the buyer "tested the red tape" but decided "not to test the white tape"); Alberts Bonnie Brae, Inc. v. Ferral , 188 Ill. App. 3d 711, 135 Ill. Dec. 926, 544 N.E.2d 422, 423β24 (1989) (rejecting an implied warranty claim when the seller claimed that the engine was "completely overhauled," and when the buyer "inspect[ed] the used nursery equipment for such defects" after); Willis v. West Kentucky Feeder Pig Co. , 132 Ill. App. 2d 266, 265 N.E.2d 899, 903 (1971) (affirming a verdict against a farmer who bought diseased pigs after he "examined the hogs"). Ellengee, too, bought the machine after a full opportunity for inspection, so it has no claim for breach of implied warranties.
Shipping items into Illinois in substantial volume therefore suffices to constitute transacting business in Illinois within the meaning of Β§ 17(1)(a), at least where the suit is by the purchaser. See Mergenthaler Linotype Co. v. Leonard Storch Enterprises, Inc., 66 Ill. App.3d 789, 798-99, 23 Ill.Dec. 352, 359-60, 383 N.E.2d 1379, 1386-87 (1978); Tabor Co. v. MeNall, 30 Ill. App.3d 593, 333 N.E.2d 562 (1975); Willis v. West Kentucky Pig Co., 132 Ill. App.2d 266, 265 N.E.2d 899 (1971). There are some older cases which suggest that the shipping of goods into Illinois alone does not constitute transaction of business within the meaning of the statute.
Where the question has been considered, it has been held that whether a contract term is conspicuous is not a question of fact for the jury, but a question of law for the court. Sarnecki v. Al Johns Pontiac, 56 Luzerne Leg.Reg. 293 (Pa. 1964; Willis v. West Kentucky Feeder Pig Co., 132 Ill.App.2d 266, 265 N.E.2d 899 (1971). Rather than dip any further into the semantic quagmire which impedes any attempt to distinguish questions of fact from questions of law, this Court chooses to follow the precept set down by Corbin above.
We note, however, that in other recent cases, the Illinois courts have expanded somewhat the jurisdictional reach of the transaction of business clause. In Willis v. West Ky. Feeder Pig Co., 132 Ill. App.2d 266 (1971), the court held that a course of sales to an Illinois plaintiff, all evidently initiated by the plaintiff on the nonresident defendant's initial solicitation, and concluded by C.O.D. delivery to the plaintiff in Illinois, constituted sufficient transaction of business to sustain jurisdiction over the defendant. In Tabor Co. v. McNall, 30 Ill. App.3d 593 (1975), cited by the plaintiff, the same court as in Willis, supra, held that it had jurisdiction where several contracts for the purchase and delivery of grain were negotiated in telephone calls between the defendant out-of-State seller and the plaintiff Illinois buyer, where confirmation of the contracts was sent from Illinois, and where delivery of the grain was to be in Illinois.
Id. ΒΆ 30 While discussed within the context of a judgment notwithstanding the verdict, a similar issue was raised in Willis v. West Kentucky Feeder Pig Co., 132 Ill.App.2d 266 (1971), and we find its analysis instructive. In Willis, a buyer purchased pigs from a seller, and the sales contract included a provision stating that losses occurring within seven days of delivery would be refunded by the seller under certain conditions. Id. at 267, 270.
In Mergenthaler Linotype Co. v. Leonard Storch Enterprises, Inc. (1978), 66 Ill. App.3d 789, 798, 383 N.E.2d 1379, 1386, it was said that "the mere shipping of goods by the defendant or agreement to ship goods into Illinois may be sufficient to establish jurisdiction," and that it would not seem to matter whether defendant made only one shipment as long as the cause of action was based on that one shipment. In Mergenthaler, however, the defendant advertised in national magazines, sent mail solicitations into Illinois, and about 5% of its sales were made here. Mergenthaler cited Willis v. West Kentucky Feeder Pig Co. (1971), 132 Ill. App.2d 266, 265 N.E.2d 899, but in Willis the defendant had contacted the buyer in Illinois, the parties had similar dealings in the past, and payment was made in Illinois to the delivery driver. In Tabor Co. v. McNall (1975), 30 Ill. App.3d 593, 594, 333 N.E.2d 562, 563, there were seven contracts, negotiated by mail and telephone from one State to the other, and the contracts called for a continuing relationship, the delivery by defendant of a large amount of grain in Illinois.