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Martin v. Mcintosh

OPINION FILED APRIL 15, 1976.

SHERRYL MARTIN, PLAINTIFF-APPELLEE,

v.

MARGARET MCINTOSH ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of St. Clair County; the Hon. BILLY JONES, Judge, presiding.

MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

The defendant appeals from a judgment entered in the circuit court of St. Clair County and raises issues which make it necessary to review in some detail the course of events in the trial court. The case was heard on a two-count complaint, the first alleging conversion and the second unlawful seizure of the property of the plaintiff. Both counts sought actual damages of $800 and punitive damages of $1,000. The defendant filed a two-count counterclaim for breach of an oral rental agreement and willful destruction of property and sought damages of $444. Following trial the jury returned a verdict in favor of the plaintiff under Count II of her complaint and awarded damages of $1,800. The jury also found in favor of the defendant and awarded damages of $71 under Count I of the counterclaim.

In December 1971, the plaintiff and defendant entered into an oral month-to-month lease agreement for an unfurnished apartment. During January the plaintiff, with the assistance of her father, shopped for furniture for the apartment. Ultimately, she purchased new furniture on an installment basis and paid a total of $547. She also purchased for cash miscellaneous household items including kitchenware and bed linen. In February 1972, plaintiff and a friend, Valentina Baker, upon delivery of the furniture, moved into the apartment and used it as their residence.

From February 1972 until late June 1972, plaintiff and Miss Baker lived in the apartment and used the furniture and other goods purchased by the plaintiff. These items were in good condition. In addition to the new items, plaintiff acquired a used rollaway bed, rugs, a space heater and clothing for herself and her expected child.

Plaintiff testified that the value of all these possessions, excluding the new furniture, was $200. Her father testified that the original price she paid for the furniture was a fair price and that the market value of the furniture had depreciated approximately $100 by June 1972.

In late June, plaintiff left the apartment temporarily to stay with her parents until the birth of her child, expecting to return to the apartment after the child was born. She took with her only some clothing. Miss Baker continued to live at the apartment.

On or about August 10, 1972, Miss Baker returned after spending several days away from the apartment to find it cleared of all plaintiff's possessions. She saw no signs of a forcible entry; the defendant and her husband had a master key.

Miss Baker immediately notified plaintiff who then contacted the defendant and her husband, according to the testimony of plaintiff and Miss Baker. They also testified that the defendant admitted she had arranged for the removal and storage of plaintiff's property until plaintiff paid rent which she owed. Plaintiff testified that she offered, subsequently, to pay the rent demanded but the defendant told her the property had been sold. Defendant and her husband denied that they had removed plaintiff's property or that they had any conversations with her after July 1972.

Defendant did not send plaintiff or Miss Baker any written notice of a rent deficiency for July or August 1972, nor notice of intent to distrain property for failure to pay rent. No action for forcible entry and detainer for failure to pay rent was ever prosecuted by defendant.

Plaintiff never regained any of her possessions which had been removed from the apartment. She replaced, at a cost of more than $900, the living room, kitchen and bedroom furniture.

• 1 Defendant, on appeal, raises three issues. First, she argues that the evidence adduced at trial was not sufficient to establish the value of the property at the time of the loss. Defendant asserts that the plaintiff's proof consisted only of a bill of sale for the furniture, which was insufficient, standing alone, to prove its value at the time of the loss 6 months later. There was, however, more evidence presented on this issue than defendant suggests. The evidence included not only the date, the purchase price, and a description of the furniture but also the condition of the furniture, not only at the time of purchase but at the time of the loss as well. In addition, plaintiff's father, a homeowner for 35 years, and experienced in shopping for household furniture, testified that the price plaintiff paid was a fair price and that the furniture had depreciated in value approximately $100 in 6 months of use. Such evidence was sufficient to be submitted to the jury for their findings as to actual damages. Mayer v. Miller, 213 Ill. App. 279.

Defendant also attacks the sufficiency of the evidence to prove the value of the miscellaneous items of household furnishings purchased by the plaintiff as she did not establish their precise purchase price nor testify as to her knowledge of the prevailing prices of such items. We cannot agree. It has long been the law in this jurisdiction that where the property in question is of a usual and ordinary nature, such as household goods, their value is a matter of common knowledge and anyone, including a housewife, may testify as to its value. Brenton v. Sloan's United Storage & Van Co., 315 Ill. App. 278, 42 N.E.2d 945; Nurnberger v. Warren and Van Praag, Inc., 133 Ill. App.2d 843, 272 N.E.2d 234.

• 2 Defendant's second contention is that the jury verdict is excessive. Under Count II of her complaint the plaintiff asked for actual damages of $800 and punitive damages of $1,000. The court instructed the jury that should they find for the plaintiff and against the defendant on either or both counts of the plaintiff's complaint and further find that the plaintiff was entitled to punitive damages, then they should use the separate jury form provided for that purpose. This form for use in assessing punitive damages was returned blank. The jury returned a verdict form which indicated they found for plaintiff under Count II and set damages at $1,800.

The defendant asserts that the jury's failure to fill in the verdict form provided for assessing punitive damages is a blank finding tantamount to a finding for the defendant on that issue. She concludes therefore that the award of ...


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