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First Nat. Bank of Elgin v. Husted

APRIL 2, 1965.

FIRST NATIONAL BANK OF ELGIN, PLAINTIFF-APPELLEE,

v.

RICHARD W. HUSTED, JR., ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court for the Sixteenth Judicial District, Kane County Division; the Hon. JOHN S. PETERSEN, Judge, presiding. Judgment affirmed.

MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.

This is an appeal from an order entered by the Circuit Court denying defendants' motion to open a judgment in the sum of $672.18, confessed against them on January 27, 1964, by plaintiff, First National Bank of Elgin.

The judgment was based on a Retail Installment Contract entered into by defendants, as buyers, and Reed Motors Inc., as seller, in connection with the sale of a 1958 Ford. The customary warrant of attorney and confession clause were on the reverse side of the contract, under the heading "Covenants and Conditions," along with the "Dealer's Assignment," whereby said contract was assigned to plaintiff, without recourse.

Defendants signed the contract on the face thereof, but did not sign on the reverse side. The face of the contract recited: "Buyer and Seller agree that the `Covenants and Conditions' printed on the reverse side hereof are incorporated herein by reference and constitute a part of this contract."

[1-3] Defendants urge that the power of attorney to confess judgment was not signed by them; consequently, the confession of judgment was void. However, "It is not necessary that the signature of a party to a contract should appear at the end thereof. If his name is written by him in any part of the contract, or at the top or right or left hand, with intention to sign or for the purpose of authenticating the instrument, it is sufficient to bind him, unless subscription is required by law." 17 CJS Contracts sec 62b, page 736; McConnell v. Brillhart, 17 Ill. 354, 360 (1856). "In the absence of any statutory requirement to the contrary, a contract may be signed in any manner which will indicate an intention to be bound thereby. . . ." 17 Am Jur2d (Contracts), par 72, page 410; In re Estate of Deskovic, 21 Ill. App.2d 209, 211, 157 N.E.2d 769 (1st Dist 1959). The face of the contract contained the provision above quoted, and we believe that the defendants did execute the power of attorney by signing the contract on its face.

We are cognizant of the general rule that the power to confess judgment must be clearly given, and strictly pursued, and a departure from such authority will render the confessed judgment void. Wells v. Durst Chevrolet Co., 341 Ill. 108, 111, 173 N.E. 92 (1930); Wolf v. Gaines, 33 Ill. App.2d 428, 431, 179 N.E.2d 466 (1st Dist 1961). However, in the case at bar, we believe, as did the trial court, that the authority to confess the judgment was clearly given.

The Retail Sales Contract was dated August 29, 1963, and was assigned to plaintiff August 30, 1963. Defendants, by said contract, acknowledged notice of intended assignment of the contract, and agreed to make all payments to assignee, and their answer admitted said assignment. The contract, on its face, provided that payments were to be made at the First National Bank of Elgin.

The motion to open the judgment, and to file answer, and the affidavit in support thereof, alleged that defendants purchased the Ford in question on August 29, 1963, from Reed Motors Inc., upon warranty that it was in good operating condition; that on September 1, 1963, defendants observed that the car did not operate properly, and that it became inoperative, and was damaged by fire; that thereafter, on September 2, 1963, Reed Motors Inc., promised to repair the car upon delivery thereof to it; that said car was delivered to Reed Motors Inc., but was never repaired, and was later sold by Reed Motors Inc., or plaintiff; and that neither Reed Motors Inc., nor plaintiff, its assignee, sold said car until December 2, 1963, which sale was not within a reasonable time after the retaking, and hence there was an election of remedies under section 23 of the Retail Installment Sales Act, (Ill. Rev Stats 1963, c 121 1/2, § 247) and thereby defendants have been released from any obligations to Reed Motors Inc., or plaintiff. Defendants' affidavit also charged lack of notice of the assignment and failure of consideration.

In their brief defendants state that they were not given a copy of the contract. However, the contract, which complied with the provisions of section 2 of the Retail Installment Sales Act, (Ill. Rev Stats 1963, c 121 1/2, par 224), recited in bold type, pursuant to section 4 of said Act, (Ill. Rev Stats 1963, c 121 1/2, par 226): "Buyer acknowledges the receipt of a true executed copy of this contract at the time of the execution hereof." Section 7 of said Act, (Ill. Rev Stats 1963, c 121 1/2, par 229) provides that the buyer's written acknowledgment, conforming to section 4 of said Act, of delivery of a copy of the contract, shall be conclusive proof of such delivery in any action by or against an assignee of the contract, without knowledge to the contrary, when he purchases the contract. Thus, the defendants are bound by their own acknowledgment of delivery of a copy of the contract. Further, such objection was not raised in the trial court, and cannot be raised here for the first time. Saladino v. City of South Beloit, 9 Ill.2d 320, 325, 137 N.E.2d 364 (1956).

Defendants further charge that plaintiff was not a holder in due course of the Retail Installment Contract, and, therefore, the defenses which they have asserted are available against the plaintiff. However, the contract provided: "Buyer agrees to settle all claims against Seller directly with Seller and will not set up any such claims against Seller as defense, counterclaim, set off, cross complaint or otherwise in any action for the purchase price or possession brought by any assignee of this contract."

The Uniform Commercial Code, provides:

"(1) Subject to any statute or decision which establishes a different rule for buyers of consumer goods, and agreement by a buyer that he will not assert against an assignee any claim or defense which he may have against the seller is enforceable by an assignee who takes his assignment for value, in good faith and without notice of a claim or defense, except as to defenses of a type which may be asserted against a holder in due course of a negotiable instrument under the Article on Commercial Paper. (Article 3). A buyer who as part of one transaction signs both a negotiable instrument and a security agreement makes such an agreement.

"(2) When a seller retains a purchase money security interest in goods the Article on Sales (Article 2) governs the sale and any disclaimer, limitation or ...


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