dissenting:
I respectfully dissent because I believe that the trial court’s finding that the cabinet doors were nonconforming goods is against the manifest weight of the evidence.
Although the Code permits a buyer the right to reject tendered goods, cancel the contract, and recover the purchase price where the tender of delivery fails “in any respect to conform to the contract” (Ill. Rev. Stat. 1987, ch. 26, pars. 2—106, 2—601, 2— 711), it is incumbent upon the plaintiff when seeking recovery under these provisions to prove that the tendered goods were not a “perfect tender.” Admittedly, the parties presented contradictory testimony as to whether the cabinet doors delivered to plaintiff were nonconforming due to a disparity in the color and stain chosen by plaintiff from the door display and that on the doors delivered to plaintiff. A reviewing court generally will not reverse a finding which rests upon the credibility of the witnesses. Here, however, plaintiff, who testified that he never installed the cabinets and had them stored in his basement, had in his control the physical evidence which would indisputably prove that the door display produced at trial by defendant was not the same color and stain as the doors tendered to him; yet, he failed to produce the cabinet doors at trial. It is established that a party’s failure to produce physical evidence within his control which he would be reasonably expected to produce in support of his position creates a presumption or an inference that the evidence, if produced, would have been adverse to him. (Costello v. Capital Cities Communications, Inc. (1988), 125 Ill. 2d 402, 532 N.E.2d 790; Tepper v. Campo (1947), 398 Ill. 496, 76 N.E. 490; Kane v. Northwest Special Recreation Association (1987), 155 Ill. App. 3d 624, 508 N.E.2d 257; Nakis v. Amabile (1981), 103 Ill. App. 3d 840, 431 N.E.2d 1255; S.A. Gard, Illinois Evidence Manual R. 3.23 (2d ed. 1979).) In view of the adverse inference or presumption that production of the cabinet doors would have shown a conforming tender, a conclusion opposite from the trial court’s finding that plaintiff’s and his wife’s testimony was more credible than defendant’s witness’ testimony is clearly apparent from the record.