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Beatrice Foods Co. v. Gallagher

MARCH 10, 1964.

BEATRICE FOODS CO., A CORPORATION, PLAINTIFF-APPELLEE,

v.

WARREN W. GALLAGHER, D/B/A FULLERTON DAIRY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of McLean County; the Hon. WILLIAM C. RADLIFF and the Hon. R. BURNELL PHILLIPS, Judges, presiding. Affirmed.

CROW, P.J.

Rehearing denied April 6, 1964.

The defendant, Warren W. Gallagher, d/b/a Fullerton Dairy, appeals, following a verdict of a jury, from a judgment entered thereon for $12,262.77 by the Circuit Court of McLean County in favor of the plaintiff Beatrice Foods Co., a corporation, the defendant's post-trial motion having been denied.

That part of the complaint, Count I, involved on this appeal and upon which recovery is based, alleged, in substance, that the plaintiff is a Delaware corporation authorized to do business in Illinois; on December 4, 1958 the defendant Warren W. Gallagher, d/b/a Fullerton Dairy, submitted a bid to the State of Illinois, to provide all the dairy products for the Kankakee State Hospital, Kankakee, for January, February, and March, 1959; the bid was accepted and the State of Illinois agreed to pay $35,548.82; the plaintiff Beatrice incurred all the costs necessary for the defendant to complete that contract; those costs included the processing of dairy products and packaging thereof in McLean County, as to which the defendant incurred no expense; the plaintiff obtained all the dairy products for that purpose at its expense from its own suppliers, and the defendant incurred no expense in that respect; the plaintiff purchased dairy cartons identical with those used by the defendant in his business and imprinted with his customary printing, at its expense, and at no cost to the defendant; the plaintiff incurred all the costs of delivery of the dairy products to Kankakee State Hospital, and the defendant incurred no such expense; all other expenses necessary for the defendant to fulfill his contract with the State were incurred by the plaintiff and not the defendant; the defendant received the benefit of the advertisement of Fullerton Dairy on the cartons; the defendant received the benefit of being a successful contract bidder with the State; under that contract the defendant received three State of Illinois checks totaling $35,548.82, each check covering a one-month period; the defendant endorsed and transferred two of the checks or their proceeds to the plaintiff at its Bloomington, Illinois office; the defendant received the third check, for the month of March, 1959 for $12,262.77 for the dairy products furnished for that month, but wrongfully withheld that money from the plaintiff, wrongfully deposited it to his own account, and refused to transfer it or the proceeds to the plaintiff. The complaint had previously alleged similar prior bids and acceptances on June 5, 1958 by the defendant and the State of Illinois for such dairy products, and deliveries in a similar manner under similar circumstances by the plaintiff to the same place for the months of July through September, 1958, the defendant receiving State checks for that prior period totaling $37,472.72; that similar prior bids, acceptances, undertakings, deliveries etc. to the same institution took place on September 10, 1958 and following for October, November and December, 1958, the amount of the State checks for that prior period totaling $36,746.40; that all of the foregoing prior checks for such dairy products so furnished such institution for such prior periods were drawn in favor of the defendant and endorsed or the proceeds transferred by the defendant to the plaintiff at its office in Bloomington. The preceding allegations of the complaint relating to those prior periods of July-September, 1958 and October-December, 1958 were identical in nature to the substance of the allegations relating to the period January-March 1959, which we've set forth, except as to the periods concerned, the amounts involved, and the disposition of the State checks.

Count II of the complaint related to an alleged open account for goods and products and a balance of $1199.32 allegedly due the plaintiff thereon. That Count is not before us, the defendant having paid that before trial.

The defendant moved to transfer the venue of the cause to Logan County upon the grounds that the defendant was a resident of Lincoln, in Logan County, and that the transaction out of which the cause of action is alleged to have arisen did not occur, or any part thereof, in McLean County. A hearing was had on that motion and the Court entered the following order:

"And now on this day comes the defendant by his attorney and presents his Motion for a change of venue. The Court having heard said Motion, the evidence produced, the arguments of counsel and being fully advised, doth deny said Motion for change of venue."

Thereafter a motion was made by the defendant to strike Count I, and dismiss the cause of action upon the grounds the complaint did not allege a sufficient interest in the plaintiff to maintain the action, and did not allege any duty on the defendant, and others. That motion was denied and the defendant ruled to plead.

The defendant subsequently filed an answer admitting certain paragraphs of Count I of the complaint, denying others, and reiterating his contentions concerning venue. As to the matters alleged in Count I under the alleged bid of December 4, 1958, foregoing, for the period January-March, 1959, the answer admitted he submitted the alleged bid to provide dairy products, it was accepted and the State agreed to pay $35,548.82, he received the State checks totaling $35,548.82, he transferred two of the checks or the proceeds thereof to the plaintiff at Bloomington, and he received and deposited in his own account one of the State checks for $12,262.77 for March, 1959, though denying such was wrongful or that the plaintiff was entitled thereto. The answer also admitted the corresponding allegations of Count I as to the matters alleged under the prior bids for the prior periods of July-September and October-December, 1958.

The defendant's theory is that (1) the action was not filed in the proper venue and the Circuit Court of McLean County is without jurisdiction; (2) the Court erred in entering judgment on a verdict unsupported by the evidence and manifestly against the the only evidence offered; (3) the Court erred in admitting evidence of offers of settlement; (4) the Court erred in giving an argumentative instruction tendered by the plaintiff and in refusing to give proper instructions tendered by the defendant, including an instruction incorporating the defendant's theory of the case; (5) the Court erred in admitting incompetent and irrelevant evidence as to an earlier and different agreement of the parties; and (6) Count I does not allege a cause of action.

The plaintiff's theory is that the complaint and evidence shows an implied contract by the defendant to pay for the dairy products concerned and to deliver to the plaintiff the foregoing $12,262.77 check for the March, 1959 deliveries by the plaintiff to Kankakee State Hospital, or, alternatively, it may recover on a quasi contract basis, and that the defendant's arguments for reversal are not supported by the law and the record.

The evidence at the hearing on the defendant's motion for change of venue is not abstracted. The defendant argues, in effect, that the Court ignored that evidence. If the record contains the evidence it is required to be condensed in narrative form so as to present clearly and concisely its substance, and the abstract must be sufficient to present fully every error relied upon: Supreme Court Rule 38, Appellate Court Rule 6, — Ill. Rev Stats 1963, c 110, §§ 101.38, 201.6. We will not search the record to reverse: Backlund v. Thomas (1963), 40 Ill. App.2d 8, 189 N.E.2d 682. The evidence at that hearing being not abstracted, the abstract is not sufficient to present fully this claimed error, and we cannot consider the defendant's contention as to venue. The abstract is the pleading of the party in a Court of review, and what is sought to be reviewed must be contained in that pleading: Richman Chemical Co. v. Lowenthal (1958), 16 Ill. App.2d 568, 149 N.E.2d 351. Further, under Section 5 of the Civil Practice Act, Ill. Rev Stats, 1963, c 110, § 5, so far as relevant, an action may be commenced in the County in which the transaction or some part thereof occurred out of which the cause of action arose. The complaint, Count I, alleged, as to the defendant's bid of December 4, 1958 for the period of January-March, 1959 that, inter alia, the plaintiff processed and packaged the dairy products in McLean County, and that the defendant transferred two of the three checks or their proceeds totaling $35,548.82 for that period to the plaintiff at its office in Bloomington, McLean County. The defendant's answer admitted the allegations as to the transfer of those two checks or their proceeds. Similarly, Count I alleged, as to the defendant's prior bids for the prior periods of July-September and October-December, 1958, that, inter alia, the plaintiff processed and packaged the products in McLean County, and that the defendant transferred all the checks or their proceeds for those periods to the plaintiff at its office in Bloomington, McLean County. And, similarly, the defendant's answer admitted those allegations as to the transfer of all those checks or their proceeds. The evidence at the trial reasonably supported such of those allegations relating to venue as were not admitted by the answer and reasonably established other facts and circumstances transpiring in McLean County which were an integral part of the plaintiff's alleged cause of action, from which the conclusion can be reasonably reached that some part of the transaction out of which the alleged cause of action arose occurred in McLean County: Standard Mut. Ins. Co. v. Kinsolving (1960), 26 Ill. App.2d 180, 167 N.E.2d 241; Bagarozy v. Meneghini (1955), 8 Ill. App.2d 285, 131 N.E.2d 792. So if the defendant's contention as to venue were properly presented it could not be sustained. Winn v. Vogel (1952), 345 Ill. App. 425, 103 N.E.2d 673, representative of the defendant's cases on this point, has no application here.

As to the urged error in a certain given plaintiff's instruction and in the refusal of certain proposed defendant's instructions, there is no reference in the abstract to a conference on instructions. There is a statement therein called "colloquy on instructions" and another called "further colloquy on instructions," the entire statement covering 18 lines in the abstract and consisting principally of certain comments by the Court at what is called "the termination" of the "colloquy." It is not indicated whether that was out of or within the presence of the jury. Also, the defendant's post-trial motion makes no reference at all to any instructions given or refused. The Court is required to hold a conference with counsel to settle the instructions, no party may raise on appeal the failure to give an instruction unless he shall have tendered it, the conference on instructions must be out of the presence of the jury: Ill. Rev Stats, 1963, c 110, § 67, — and all objections made at the conference, and the rulings thereon, shall be shown in the report of proceedings: Supreme Court Rule 25-1, Ill. Rev Stats, 1963, c 110, § 101.25-1. Not indicating a conference on instructions in accordance with the foregoing provisions of the Civil Practice Act and the foregoing Supreme Court Rule, this abstract is not sufficient to present fully the alleged error the defendant relies upon in this respect: Supreme Court Rule 38, Appellate Court Rule 6, supra. Further, a post-trial motion must contain the points relied upon, particularly specifying the grounds in support thereof, and a party may not urge as error on review of the ruling on his post-trial motion any point, ground or relief not particularly specified in the motion: Ill. Rev Stats 1963, c 110, § 68.1. Accordingly, this defendant's point concerning instructions given or refused may not be urged as error on this review, — the point is regarded as waived upon appeal: Backlund v. Thomas (1963), 40 Ill. App.2d 8, 189 N.E.2d 682; Richman Chemical Co. v. Lowenthal (1958), 16 Ill. App.2d 568, 149 N.E.2d 351; Perez v. Baltimore & O.R. Co. (1960), 24 Ill. App.2d 204, 164 N.E.2d 209; County Board of School Trustees of Macon County v. Batchelder (1955), 7 Ill.2d 178, 130 N.E.2d 175.

At the trial, Charles A. Peterson, Branch Manager at Bloomington, Illinois for the plaintiff, Beatrice Foods Co., testified for the plaintiff and the defendant Gallagher was called by the plaintiff for cross-examination under section 60 of the Civil Practice Act. The defendant called no witnesses in his own behalf, nor did he testify or seek to testify in ...


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