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Nationwide Commercial Co. v. Knox

JANUARY 31, 1973.

NATIONWIDE COMMERCIAL COMPANY, PLAINTIFF-APPELLANT,

v.

GERALD T. KNOX ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. NICHOLAS J. BUA, Judge, presiding.

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

This is an appeal by plaintiff from an order vacating and setting aside a judgment by confession entered against the defendants. Said judgment was vacated on the grounds that the court lacked jurisdiction over the defendants in that the contract sued on was not executed in Cook County as required by Illinois Revised Statutes, 1971, Chapter 110, Section 50(3).

The statute involved recites the following:

"Any person for a debt bona fide due may confess judgment by himself or attorney duly authorized, without process. The application to confess judgment shall be made in the county in which the note or obligation was executed or in the county in which one or more of the defendants reside or in any county in which is located any property, real or personal, owned by any one or more of the defendants. A judgment entered by any court in any county other than those herein specified has no force or validity, anything in the power to confess to the contrary notwithstanding."

On November 19, 1971, a judgment by confession was entered against the defendants in the Circuit Court of Cook County in the amount of $48,057.38. Defendants entered their special appearance and filed a motion in the trial court to vacate the judgment on the grounds that the contract was not executed in Cook County. The motion was supported by an affidavit.

In support of their motion, the defendants alleged that they contracted to buy certain equipment from A to Z Rental, a corporation doing business in Chicago, Illinois, under an installment contract and securities agreement which was mailed to them at their home in Elyria, Ohio. They signed the agreement and delivered it to A and Z Rental by placing it in the mail in Elyria, Ohio. The defendants alleged further that they owned no property and did no business in Cook County, and never resided there. The interest of the seller, A to Z Rental, Inc., in the contract was subsequently conveyed to Nationwide Commercial Company, plaintiff herein. The terms and conditions of that assignment are immaterial and of no significance for purposes of this appeal.

In opposition to defendants' motion to vacate, an affidavit was filed by Donald Dix, Treasurer of A to Z Rental, alleging that the place of business of A to Z Rental was located at 201 North Wells Street, Chicago, Illinois, and that the affiant had signed and accepted the Installment Sales Contract involved herein on behalf of A to Z Rental on June 9, 1969 in Chicago, Illinois.

The Installment Sales Contract contained a confession of judgment clause, which permitted the plaintiff to confess a judgment against the defendants for amounts due if payments were not made. The contract also contained the following language located, in capital letters and bold type, directly above the place for defendants' signatures:

"This contract shall not be binding upon seller or become effective until and unless accepted on behalf of seller by seller's president, vice president or treasurer in writing at Chicago, Illinois."

The sole question for us is whether the Installment Sales Contract which contained the confession of judgment clause was "executed" in Cook County, Illinois.

It is plaintiff's position that the defendants' signing of the contract and placing it in the mail in Ohio did not constitute the execution of the contract, since by its terms, the contract clearly stated that it would not be effective until signed by A to Z in Chicago. It is urged that the signing in Chicago was the final act necessary to render the contract "executed." Plaintiff argues that where the parties to a contract make the signing of the contract a condition precedent to its completion, the contract, and any provisions or clauses therein, is not binding until that condition is performed.

The defendants, on the other hand, claim that the contract, having been signed by them and deposited in the mail in Ohio, was not "executed" in Cook County as required by statute when confessing a judgment.

• 1 We think basic contract law supports the plaintiff's position that the contract was executed in Cook County. The record clearly establishes that the defendants signed a contract which specifically provided that it would not be effective until accepted and signed in Chicago by a representative of A to Z Rental. The provision was located, in capital letters and bold type, directly above where the defendants placed their signatures. There is no contention that the defendants were not aware of the provision or that they did not assent to it.

• 2 It is elementary that the language of the instrument can govern the mode of acceptance required. As stated in Baltimore & Ohio South-western R.R. Co. v. People ex ...


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