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Stifel, Nicolaus & Co. v. Coloia

NOVEMBER 5, 1971.

STIFEL, NICOLAUS & COMPANY, PLAINTIFF-APPELLEE,

v.

JOHN COLOIA ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. ABRAHAM W. BRUSSELL, Judge, presiding.

MR. PRESIDING JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT:

Defendants appeal from a summary judgment for $9,830.10, being the amount plaintiff claims it overpaid defendants in forwarding to them the proceeds of sale of 400 shares of stock in the National Union Electric Corporation (National Union) in which plaintiff had acted as broker for defendants.

The facts are taken from the pleadings and depositions on file with the trial court. In 1959, Louis Coloia, as agent for his brothers who are the defendants, arranged for purchase of the shares in question at $3.75 per share. The shares were originally purchased through a Mr. Petruzzi at another brokerage firm, who took defendants' account with him when he moved to plaintiff's firm. After he left there in 1961, it was handled by Albert Hoffman.

Until 1963, Louis Coloia kept himself well advised of the status of the National Union shares by checking the newspapers. In 1966, he noticed in the paper that National Union stock was still listed on the American Stock Exchange and selling for approximately $37. He called Hoffman and asked if this was the same firm, and was told that it was. Hoffman asked him to bring the shares in for examination to verify ownership, which he did on March 3, 1966. Hoffman looked at the certificates which were dated July 14, 1959, and registered in defendants' name, and told Louis that his brothers owned 400 shares of National Union. They discussed the growth of the company over the years, and Hoffman "advised that we stay with it" and watch its progress daily, which Louis did for about two weeks. Louis also told Hoffman, at their March 3rd meeting, that he had checked into the company's dividend record and discovered that there had been a 50¢ dividend in 1964 and a 70¢ dividend in 1965, neither of which had been received by defendants. In his presence and at his request, Hoffman dictated a letter of inquiry concerning the unpaid dividends to the company's registered agent, Marine Midland Grace Trust Company of New York. Hoffman later told him that he had not had a reply, and on March 19, when Louis went to see Hoffman again, another letter was written concerning these dividends.

On March 14, 1966, Louis directed plaintiff to sell 400 shares of National Union at the market price on that date for the account of his brothers, and plaintiff did so, selling 100 shares at $31.50 and 300 shares at $31.75. The following day, Louis delivered the stock certificates to Hoffman. On March 18, plaintiff sent its check in the amount of $12,370.10 to Louis, payable to defendants. The check was endorsed, cashed, and paid on or about March 23.

On approximately April 11, plaintiff received noticed from its correspondent in New York, to whom the certificates had been sent for their purchaser, advising that there had been a reverse split of the stock in question on May 8, 1964, as a result of which two-tenths of a new one-dollar par value share had been issued in exchange for each of the then out-standing thirty-cent per value shares. Plaintiff was previously unaware of this reverse split. The result of the reverse split was that, after that date, including the date of sale, defendants' certificates for 400 shares actually represented only 80 current shares of National Union.

On April 11, 1966, Hoffman advised Louis of the reverse split; told him, and also defendants, that their account was short 320 new shares; and requested defendants to make delivery of 320 shares, or payment therefor; neither of which defendants did.

Plaintiff's claim, based on Count II of the Amended Complaint, *fn1 was that, because of a mutual mistake of material fact, defendants were unjustly enriched by $9,830.10, being the difference in the March 14, 1966 value between 80 shares and 400 shares of National Union. Judgment was entered on that theory and in that amount.

• 1 Defendants' first contention is that plaintiff's motion for summary judgment was not supported by proof; specifically, that Section 57 of the Practice Act requires the filing of affidavits with motions for summary judgment, and that plaintiff's motion for summary judgment was unsworn and was not accompanied by any affidavits. Plaintiff's motion did, however, include substantial quotes from discovery depositions which had previously been filed with the court. Defendants cite Ruby v. Wayman, 99 Ill. App.2d 146, for the proposition that a motion for summary judgment must be construed most strongly against the moving party, a rule which we recognize, but it does not furnish adequate support for defendants' contention in this case.

The summary judgment statute (Ill. Rev. Stat. 1967, ch. 110, par. 57) provides in pertinent part:

"(1) For plaintiff. Any time after the opposite party has appeared or after the time within which he is required to appear has expired, a plaintiff may move with or without supporting affidavits for a summary judgment or decree in his favor for all or any part of the relief sought.

(3) Procedure. The opposite party may prior to or at the time of the hearing on the motion file counteraffidavits. 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." (Emphasis supplied.)

Supreme Court Rule 212 provides further, in this regard, that discovery depositions may be used "for any purpose for which an affidavit may be used." Ill. Rev. Stat. 1967, ch. 110A, par. 212(a) (4).

Continuing their argument on this point, however, defendants say that plaintiff's motion, being unverified, does not supply any sworn statement that the alleged excerpts from the depositions recited in the motion are, in fact, true excerpts therefrom. We consider this contention to be wholly without merit, as the motion clearly incorporates the depositions by reference, and there has been no objection to the form of the ...


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