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Mineika v. Union Nat'l Bank of Chicago

JUNE 19, 1975.

KENNETH MINEIKA, PLAINTIFF-APPELLEE,

v.

UNION NATIONAL BANK OF CHICAGO ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. JOHN A. OUSKA, Judge, presiding.

MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:

Plaintiff, Kenneth Mineika, brought this action in the circuit court of Cook County against Rosemoor Auto Exchange (hereinafter Rosemoor) and Union National Bank of Chicago (hereinafter the Bank) to recover a 1967 Cadillac or the value of said automobile, alleged to have been wrongfully detained by defendants. Plaintiff also sought the sum of $5,000 in special damages for the alleged detention.

The Bank filed a motion to dismiss the action on the ground that plaintiff was in default under the terms of a certain retail installment contract and its action in repossessing the vehicle in question was contractually privileged. After the court denied its motion, the Bank filed an answer denying the pertinent allegations of the complaint and raising the affirmative defense of contractual privilege. Defendant Rosemoor did not answer or appear in the trial of this cause. A bench trial was held on May 14, 1974, and plaintiff appeared pro se. At the close of all the evidence, the trial court entered judgment in favor of plaintiff for $3,420. The Bank has brought this appeal.

On May 14, 1970, plaintiff purchased a used 1967 Cadillac from Rosemoor for $3,420. Plaintiff made a down payment of $920. The balance of the purchase price, plus finance charges, was to be paid by plaintiff in 23 monthly installments.

The financing arrangement was embodied in a retail installment contract executed by Rosemoor and plaintiff on the date of the sale. Under its terms plaintiff warranted that he would not use, or permit the vehicle to be used in violation of any law. Further, the contract set forth specific events or conditions that would constitute an event of default. These included:

"(b) Failure of Buyer to perform any agreement or warranty made by Buyer * * *

(d) Seizure or forfeiture of said motor vehicle for violation of any law or ordinance * * *

(f) Reasonable insecurity of the holder * * *"

Upon the occurrence of any event of default, the holder of the contract had the right to declare the entire debt due and to take possession and dispose of the vehicle. On the date of the sale, the contract was purchased from Rosemoor by the Bank under a full recourse agreement.

Plaintiff was the sole witness at the trial of this cause. From his uncontroverted testimony it appears that on August 10, 1970, plaintiff was arrested for possession of marijuana and his vehicle was seized by the police pursuant to section 36-1 of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, par. 36-1). On the following day plaintiff appeared in the criminal division of the Cook County circuit court. The judge discharged plaintiff from further criminal proceedings and told him that the assistant State's Attorney would authorize release of his vehicle. The assistant State's Attorney advised plaintiff that a letter of disclaimer from the Bank was required before the vehicle would be released. Plaintiff thereupon proceeded to the Bank to obtain the necessary document.

At the Bank plaintiff talked to a secretary who told him the document would be drawn up and signed. Returning later to pick up the letter, plaintiff was advised that Mr. Vanzil, assistant vice-president of the Bank, wanted to see him. During the interview Vanzil informed plaintiff that the Bank did not like his kind and did not think he was fit to own an automobile. Vanzil then stated that the Bank was going to repossess the automobile and told plaintiff to leave the Bank. On August 14, 1970, the Bank notified plaintiff that the automobile would be sold in 10 days unless he redeemed it within that time. Upon the expiration of the 10-day redemption period, plaintiff learned that the vehicle had been sold.

Concerning the criminal charge plaintiff testified that he had been stopped by officers of the Chicago Police Department; that a search of the automobile was subsequently conducted; and that the officers claimed to have found a marijuana cigarette in the sun visor. Plaintiff also testified that there were no drugs in the vehicle on the evening in question and if marijuana was found it must have been planted in the automobile to create grounds for his arrest.

On appeal, the Bank first contends that the trial court erred in rejecting its affirmative defense of contractual privilege. Citing subsection 6(d) of the contract, the Bank states that seizure of the vehicle for violation of any law is an event of default. Since plaintiff admitted that the automobile was seized by the police, the Bank maintains that its right to repossess the vehicle was clearly established by the evidence and its action, under the circumstances, was legally and contractually proper. The Bank claims that the trial court erred in holding that criminal conviction is necessary to establish a default under this provision.

The language of subsection 6(d) is clear and unambiguous, and there is no need to resort to rules of construction or look to extrinsic facts surrounding the making of the contract to discern its meaning. Under the plain language of the agreement, the holder of the contract has the right to declare a default if the vehicle is seized for violation of the law. The term "violation" has an ordinary and popular significance; it means an act of breaking or transgressing the law. (Rabon v. South Carolina State Highway Department (1972), 258 S.C. 154, 187 S.E.2d 652.) In order to establish a default under subsection ...


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