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Kelrick v. Koplin

JULY 7, 1966.




Appeal from the Circuit Court of Cook County; the Hon. EDWARD G. SCHULTZ and BEN SCHWARTZ, Judges, presiding. Judgment modified and as modified, affirmed.


Rehearing denied and opinion modified September 20, 1966.

This appeal comes from the granting of a motion for summary judgment in the Circuit Court of Cook County, June 26, 1964, and from an amended summary judgment entered February 17, 1965. The appellant urges that a sufficient question of fact was presented to the court below to prevent the entering of summary judgment, that the finding that there was no just reason to delay enforcement or appeal was error, and that the allowance of interest in this action for conversion was improper.

The original complaint in this action was filed February 3, 1958, by George Kelrick, doing business as National Jewelry Co., against Hannah L. Koplin, Harry Koplin and the Glencoe National Bank. That complaint alleged that the plaintiff had delivered to Hannah L. Koplin certain articles of jewelry under a contract of bailment under which Mrs. Koplin was permitted to take the jewelry with her for the purposes of inspection. It was alleged that the jewelry was never returned, although demand was made of Mrs. Koplin. A temporary injunction was issued which ordered the Glencoe National Bank not to permit the removal of the articles of jewelry from a safe-deposit box rented by the defendants. This injunction was set aside by this court in Kelrick v. Koplin, 19 Ill. App.2d 301, 153 N.E.2d 481 (1958). On December 29, 1958, the complaint was amended to add a Count II which realleged the facts in the earlier complaint, and also alleged the value of the jewelry in the possession of Hannah Koplin to be $5,818.75. The plaintiff sought recovery in that amount. The original Count I was eventually dismissed and is not before us now.

An answer and counterclaim was filed in which it was alleged that Kelrick owed Harry Koplin the sum of $10,000. It was said that Harry Koplin accepted in partial payment the items of jewelry in question. It is also alleged that Hannah Koplin was acting solely as agent for her husband when she picked up the jewelry at the plaintiff's store. It is alleged that the printing on the form signed by Hannah Koplin did not represent the true agreement between the parties. The counterclaim asks a judgment in the amount of $4,181.25 plus interest, that sum being $10,000 less the value of the jewelry received.

A motion for summary judgment was subsequently filed in the Circuit Court asking that the counterclaim of Harry Koplin be dismissed with prejudice for the reason that a Kentucky court had determined that the $10,000 debt claimed by Mr. Koplin was not owed to him, thereby making the subject matter of the counterclaim res judicata. The motion for summary judgment also asked that a judgment be entered for the plaintiff in the sum of $5,818.75 plus interest thereon. After the filing of affidavits and interrogatories, the court below entered summary judgment for the plaintiff on his claim against Hannah Koplin in the sum of $5,818.25 plus interest in the sum of $2,401.06. The counterclaim was continued generally.

The plaintiff then sought to enforce his judgment, but discovered that there was no finding that there was no just reason to delay enforcement or appeal. As the counterclaim was still pending in the Circuit Court, the judgment granted the plaintiff was as yet unenforceable. Ill Rev Stats 1963, c 110, § 50(2). The plaintiff then went back to the Circuit Court and had the judgment amended to show that there was no just reason to delay enforcement or appeal. The appeal was then brought to this court.

The first question we shall consider is whether or not there was a question of fact that would preclude the granting of a motion for summary judgment. Ill Rev Stats, 1963, c 110, § 57 provides

"(3) . . . The judgment or decree sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment or decree as a matter of law."

It is undisputed among the parties that Mrs. Koplin went to the store of Kelrick and took certain jewelry. It is also undisputed that certain items were returned and other items taken in place of the returned merchandise. The dispute among the parties turns on whether Mrs. Koplin took the merchandise for herself, or whether she was merely acting as agent for her husband. As we noted above, Mr. Koplin claims he took the jewelry in part payment for a debt of $10,000 owed him by Kelrick. The Koplins maintain that Mrs. Koplin merely acted as agent for her husband in taking the jewelry from the store. They say that this was known by Kelrick, and that the only reason Kelrick is suing Mrs. Koplin for the return of the merchandise is she has no counterclaim against Kelrick while her husband does. Kelrick, on the other hand, denies these allegations and further claims that such evidence as is offered by the Koplins is barred by the parol evidence rule.

The writing in question is headed MEMORANDUM, and shows "From National Jewelers Co., 630 5th Ave., New York, N.Y.; To Mrs. Hannah Koplin, 547 Greenleaf, Glencoe, Ill." Immediately under this there is printed on the form, the following:

"The goods described and valued as below are delivered to you for examination and inspection only and remain our property subject to our order and shall be returned to us on demand. Such merchandise, until returned to us and actually received, are at your risk from all hazards. No right or power is given to you to sell, pledge, hypothecate or otherwise dispose of this merchandise regardless of prior transactions. A sale of this merchandise can only be effected and title will pass only if, as and when we the said owner shall agree to such sale and a bill of sale rendered therefor."

Following this there is a list of jewelry. Some of the items have been crossed off and marked returned; other items were added to the list after it was originally signed. The memorandum is signed "H. Koplin." It is admitted that this is Mrs. Koplin's signature.

It seems clear that on its face, this document is a contract of bailment whereby National Jewelers Co., the store owned by Kelrick, agreed to allow Hannah Koplin to take certain jewelry for inspection, and Hannah Koplin agreed to assume responsibility for the jewelry given her. We note that nowhere is there a mention of agency of any kind, nor is there any place where the name of Harry Koplin appears. The rule is set forth in III Corbin on Contracts, § 573 as, "When two parties have made a contract and have expressed it in a writing to which they have both assented as the complete and accurate integration of that contract, evidence, whether parol or otherwise, of antecedent understandings and negotiations will not be admitted for the purpose of varying or contradicting the writing." Corbin in that same section urges the issues involved in the application of the parol evidence rule to be "(1) Have the ...

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