Appeal from the Superior Court of Cook County; the Hon. DANIEL
A. ROBERTS, Judge, presiding. Affirmed in part and reversed in
MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT.
Plaintiff brought this action to recover damages on a truck-leasing agreement alleged to have been breached by defendant. The jury returned a verdict for plaintiff, and defendant *fn1 appeals from a $49,000 verdict and judgment entered in favor of plaintiff.
The plaintiff corporation, Tel-Radio Transport Corporation was in the trucking and truck leasing business with its garage facilities located at Hinsdale, Illinois. The defendant manufactured and distributed soft drinks in a nation-wide operation with canning plants on the West Coast, in New Jersey and one in Chicago.
In 1954, Harry Newberger, plaintiff's president, solicited defendant's truck-leasing business which resulted in a written lease agreement between the parties executed in July of that year. Plaintiff, by this agreement, was required to provide ten specially designed and constructed trucks for the delivery of canned soft drinks. The bodies of these trucks had three doors on each side of the body, two doors in back and a floor which sloped to a twenty degree angle toward the center of the truck. The lease was for a period of three years from the date of the delivery of the trucks. The lease further provided, that the defendant would pay a certain sum for the use of the trucks and that the plaintiff would bear all expenses for the operation of the vehicles.
Attached to the written contract was a schedule, setting forth among other things, the year of the trucks, the model number, the motor number and the serial number. Each of the ten trucks covered under the schedule were specifically so listed. The written contract also set up terms under which additional trucks could be added under the terms of the contract.
Ten trucks were delivered to defendant in June or July of 1954. The defendant for its own convenience operated the trucks from the plaintiff's garage in Hinsdale. At the height of the 1954 summer season and after the delivery of the ten trucks contemplated in the written contract, defendant's employee, Charles Widmer, who was in charge of the local trucking operation, informed plaintiff's president that the defendant needed additional trucks. At defendant's oral request ten additional trucks of the same special design were ordered built for defendant's use. A short time later and by agreement, the number of trucks delivered to defendant was reduced to nine.
The facts leading up to defendant's purported termination of the contract are as follows:
The lease agreement provided, in paragraph five, that plaintiff would pay all costs of gasoline, oil, maintenance, etc. It also expressly states that plaintiff would "provide all necessary Illinois State License Plates and City of Chicago Vehicle Tags." It is uncontroverted that the trucks did not have Chicago "tags." The evidence is conflicting as to the reasons for this. It appears from the evidence that the defendant's truck drivers were continually getting traffic tickets because the trucks did not have Chicago Vehicle Tags. On June 3, 1955, defendant sent plaintiff a registered letter addressed to Harry Newberger demanding that tags be furnished for the trucks. In this letter, the defendant referred to a meeting held on March 17, 1955, at which meeting a discussion of the tags was had between Mr. Newberger (President of Tel-Radio), Mr. Kahler (Assistant Sales Manager for defendant), and the writer of the letter, Mr. Naber (Assistant Secretary for defendant). The letter went on to say that Mr. Newberger had agreed to immediately provide proper tags so as not to be in violation of the law, and reminded him that drivers were again being stopped and that the situation should be rectified in accordance with the contract.
On June 6, 1955, the defendant, by registered mail, gave notice and demand that plaintiff supply "tags" on the ten trucks pursuant to the agreement. Thereafter, by registered mail, notice was given to plaintiff on June 18th, 1955, claiming a breach of the lease agreement, and in accordance with the terms of the agreement giving thirty days notice of termination.
The plaintiff claimed that they were not required to purchase "Chicago Tags" because they were the owners of the trucks and they were garaged in Hinsdale, Illinois, and not in Chicago. Moreover, they obtained a certificate of registration from the Secretary of State as required by the Municipal Code of Chicago "Licenses Required. 29.2."
Mr. Newberger testified that after they received the letter of June 6th, Mr. Widmer, defendant's Chicago Sales Manager, asked him to come to their office, and at a meeting on June 9th, between them and Mr. Kahler and Mr. Martin, Vice President and General Manager of Tel-Radio he was told by Mr. Widmer that his company was interested in buying the ten trucks under the written lease for resale to their drivers. Widmer asked him for a price and he quoted $3,000 for each. He said he asked Widmer about the June 6th letter and was assured by both Widmer and Kahler that the purchase of the trucks would go through and they "told us not to purchase the City stickers, because they could not be transferred to the other drivers." After that he said he called Kahler a few times, and was told they were waiting for an answer from their superiors. Under the contract, the defendant had the option to cancel the agreement on any anniversary of the date on which the last vehicle was delivered to it under the agreement by giving the plaintiff thirty days' notice and then by purchasing the vehicles at a depreciated rate as set forth in the schedule. Following the meeting of June 9th, Newberger mailed a letter on that date to defendant offering the ten trucks for sale at $3,000 per truck. Instead of a reply he received the letter of June 18th wherein the defendant declared the lease-contract terminated.
The original complaint filed on January 4, 1956, alleged that plaintiff and defendant entered into a truck-leasing contract and that plaintiff, in reliance upon the contract, "purchased and made available for the defendant's exclusive use fourteen pieces of motor vehicle equipment which were used by the defendant." It was further alleged that defendant, without cause, terminated and breached the agreement to plaintiff's damage in the amount of $136,000. Defendant answered, claiming it was the plaintiff who breached the agreement and counterclaimed for $35,000 in damages. On April 9, 1962, the defendant was given leave to substitute attorneys. On April 12, 1962, an order was entered assigning the case for trial. On that date, defendants moved for a continuance of sixty days and was granted a continuance to April 30, 1962, on which date the jury trial commenced. Before trial, the plaintiff filed an amended complaint, alleging the merger of defendants and modified its claim for damages from $136,000 to $106,702.
On the trial of the cause, the plaintiff offered evidence showing it sustained damages in the amount of $38,912 for the alleged breach with respect to the first ten trucks. The plaintiff then attempted to prove damages to the extent of $36,000 for the additional nine trucks under the express written lease agreement. Objection was made to this proof by defendant and the court reserved its ruling. After hearing further evidence on this latter claim, the trial judge sustained defendants' motion, but over defendants' objection ruled that plaintiff was entitled to recovery on a quantum meruit basis stating "the trucks had special bodies which were of no use to the plaintiff. There was sufficient authority in the sales people to order these nine trucks and they got the benefit of them, for which they paid, which was ratification. There was a loss, determinable by quantum meruit. . ." Pursuant to leave of court, the plaintiff then filed an amended complaint alleging the leasing of additional trucks on an oral agreement which was breached by defendant, causing plaintiff damages in the amount of $10,371.40, which reduced the aggregate claim for damages to $49,000, and defendant appeals from judgment in the amount of $49,000 entered on the verdict.
The defendant first contends that the trial judge abused its discretion in not granting defendants' renewed motion for a continuance on the morning this case went to trial. The affidavit for continuance set forth that material witnesses were not available and could not be located and further, that defendant had demanded documentary evidence from plaintiff, but had not obtained same, and therefore, that defendant needed an additional continuance in order to obtain discovery of such documentary evidence in preparation of trial. In support of this contention, defendant cites Krupinski v. Denison, 9 Ill. App.2d 155, 132 N.E.2d 451. The facts in that case are clearly distinguishable from the case at bar. In Krupinski the case was reached for trial within five months after suit was filed and the Appellate Court in reversing a dismissal in that cause stated, "on this review we are not dealing with a case which has been pending over a long period of time and where there have been numerous continuances granted." In the case at bar, the complaint was filed on January 4, 1956, and the cause did not come to trial until April 30, 1962. The general rule is ...