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Nassar v. Smith

AUGUST 15, 1974.

GEORGE N. NASSAR ET AL., PLAINTIFFS-APPELLANTS,

v.

FRED SMITH, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Macoupin County; the Hon. FRANCIS J. BERGEN, Judge, presiding.

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

This appeal concerns the right of various parties to certain personal property which was seized pursuant to an execution levied by a sheriff on behalf of a judgment creditor. The basic facts are somewhat confused but are essentially as follows.

The appellants, George N. Nassar and Jules Bralock, filed a replevin petition against Fred Smith alleging that Smith was wrongfully retaining possession of certain tires owned by Nassar and Bralock. These tires had been seized by the sheriff for Fred Smith pursuant to an execution upon a judgment against Tom Walden, who had possession of the tires. The trial court after hearing the evidence denied the writ of replevin and as a consequence, Nassar and Bralock, the purported owners of the tires seized under the execution, appealed.

The third party to the proceeding, Tom Walden, was the judgment debtor of Fred Smith and was operating a wholesale tire business both prior to and subsequent to the execution. In his business he not only sold the tires that he had on his premises but he also would take tires from customers for the purpose of putting whitewalls on them and after completion of the whitewall work returned the tires to the customer.

At the time of the levy, Walden had approximately 400 tires at his place of business that were allegedly owned by Bralock. These tires were placed with Walden for the purpose of "whitewalling them" for $1 per tire and upon completion of the whitewall work, they were to be returned to Bralock. Receipts were introduced showing this arrangement. As regard to the tires of Nassar they were left according to the testimony of Walden to see if "they could work something out" for Walden to become a dealer of Nassar. Walden testified that he would sell Nassar's tires if he could but prior to the execution by the sheriff he had not in fact sold any tires of Nassar. Nassar denied that Walden had any authority to sell.

Both Nassar and Bralock testified that Walden had no ownership interest in the tires; however, neither Bralock nor Nassar filed any financing statements nor had any security agreements nor were there any notices posted on the premises indicating that the tires were held by Walden either by consignment or any type of agreement whereby Walden had no title to them. There was testimony of third parties to the fact that Walden was in fact operating a wholesale tire business and was in fact selling tires in the community and held himself out as a wholesale tire dealer. In analyzing the arguments and the points raised by both Nassar and Bralock, it appears to this court that the two parties must be treated differently as the relationship with Walden was not the same.

• 1 Section 1 of the Replevin Act (Ill. Rev. Stat. 1971, ch. 119, par. 1), provides as follows:

"That whenever any goods or chattels shall have been wrongfully distrained, or otherwise wrongfully taken or shall be wrongfully detained, an action for replevin may be brought * * *."

The person bringing the action must recover, if at all, on the strength of his own title and his right to immediate possession. Frank v. Hayes, 25 Ill. App.2d 99, 166 N.E.2d 283; Hanaman v. Davis, 20 Ill. App.2d 111, 155 N.E.2d 344.

Nassar and Bralock contend that Walden had no title and therefore the seizure by the sheriff under the excution was wrongful. Smith, on the other hand, cites section 2-326 of the Illinois Commercial Code (Ill. Rev. Stat. 1971, ch. 26, par. 2-326), and contends that the transactions here involved were "sales or returns". The aforesaid provision of the Code states:

"(1) Unless otherwise agreed, if delivered goods may be returned by the buyer even though they conform to the contract, the transaction is

(a) a `sale on approval' if the goods are delivered primarily for use, and

(b) a `sale or return' if the goods are delivered primarily for resale.

(2) Except as provided in subsection (3), goods held on approval are not subject to the claims of the buyer's creditors until acceptance; goods held on sale or return are subject ...


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