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Rice v. Snarlin

NOVEMBER 18, 1970.

NAOMI RICE ET AL., PLAINTIFFS-APPELLANTS,

v.

SNARLIN, INC., DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. WALTER P. DAHL, Judge, presiding.

MR. PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT: Plaintiffs, Naomi Rice and Bobbie J. Rice (a minor by her next friend, Naomi Rice) appeal the order striking their complaint and dismissing the cause. This court entered an order appointing the Attorney General of the State of Illinois as amicus curiae to file a brief directed to the issue of whether a private party is authorized by the Consumer Fraud Act. (Ill. Rev. Stat., 1967, ch. 121 1/2, par. 261-272) to bring a cause of action for practices therein declared unlawful.

On appeal plaintiffs contend:

1. Defendant's motion to dismiss was insufficient.

2. The complaint alleges the commission by defendant of an unlawful practice under Section 2 of the Consumer Fraud Act.

3. A suit for a declaratory judgment, an injunction, damages and other relief may be based upon the commission of an unlawful practice under Section 2 of the Consumer Fraud Act.

4. Count two of the complaint alleges facts sufficient to allow the plaintiffs to seek relief for all members of a class of persons similarly situated.

On January 22, 1969, plaintiffs filed their two count complaint in equity against defendant, Snarlin, Inc. The complaint in substance alleged that plaintiffs had executed a "retail installment-conditional sales contract" with defendant on April 20, 1968. The contract provided that for $75.00 consideration, payable in $5.00 monthly installments, defendant would include plaintiff Bobbie J. Rice's name, address and phone in a directory listing to be sent to 500 companies.

Plaintiffs further alleged that subsequent to execution of the contract, defendant sent them what was purportedly a copy of the directory listing. It consisted of one page with a picture of a young woman in the upper right hand corner. To the left of the picture the advertisement read:

"HANDY READY-REFERENCE DIRECTORY OF ATTRACTIVE, TALENTED MODELS — AVAILABLE FOR IMMEDIATE ASSIGNMENTS

Below you will find listed the names, addresses, phone numbers and general description of several amateur and/or professional models.

This represents girls of mixed nationalities who are interested in making contacts for modeling assignments in business and industry.

If you are planning a fashion show, a newspaper or magazine advertisement or mailing piece which needs an illustration * * * if you need test shots in the planning of a new sales promotion * * * if you need a hostess at your next meeting or trade show or just a pretty girl to attract customers to your store or display, you may find one of these models will fit your needs. You may obtain a photograph and/or additional information by calling the models.

Do not call our office. Make all contact directly with the model. This directory is published as information only. We cannot be responsible for fees, representations or any dealings between the model and prospective employer."

Below the picture and advertisement, Bobbie J.'s name, address, telephone, height and size were furnished.

Plaintiffs further alleged that at the time of execution of the contract the defendant falsely and fraudulently represented to plaintiffs that the information on Bobbie J. would be included in a directory sent to 500 companies; that defendant falsely and fraudulently failed to reveal to the named plaintiffs that the directory was merely an advertising flyer and that all the companies or most or many of them may not have had the slightest need or interest in obtaining the services of a model and that plaintiffs believed that the companies had been selected at random.

The above factual occurrences were then alleged to be violative of Section 2 of the Consumer Fraud Act, Ill. Rev. Stat. 1967, ch. 121 1/2, par. 262, and plaintiffs prayed: (1) that Naomi Rice be granted leave to sue on behalf of Bobbie J. Rice, as next friend, (2) that the court declare the contract illegal and void and the acts complained of to be unlawful under Section 2 of the Consumer Fraud Act, (3) that the court enjoin defendant from transferring the contract and attempting to collect any indebtedness allegedly due, (4) that judgment of $1,025 be entered against defendant, (5) that a special finding of malice against defendant be entered and a writ of capias ad satisfaciendum issue and (6) that other appropriate relief be granted.

Plaintiff's second count realleged all material factual matters of the first count and prayed for similar relief for all members of the same class of persons as plaintiffs.

Defendant moved to strike the complaint and dismiss the cause for the following reasons:

(1) Failure to plead sufficient facts to show fraud,

(2) Failure to set forth any specific acts of fraud,

(3) Irrelevancy of matters alleged,

(4) Existence of adequate remedies at law,

(5) Failure to show common interest between plaintiffs and the alleged class of persons ...


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