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Soft Water Service v. M. Suson Enterprises

OPINION FILED JUNE 1, 1976.

SOFT WATER SERVICE, INC., D/B/A CULLIGAN WATER CONDITIONING, PLAINTIFF AND COUNTERDEFENDANT-APPELLEE,

v.

M. SUSON ENTERPRISES, INC., DEFENDANT AND COUNTERPLAINTIFF-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. FRANCIS J. GLOWACKI, Judge, presiding.

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

Soft Water Service, Inc., doing business as Culligan Water Conditioning (plaintiff) brought action against M. Suson Enterprises, Inc. (defendant), seeking recovery of an unpaid balance for merchandise sold and delivered and on an account stated. Defendant denied liability and filed amended affirmative defenses raising issues of alleged defects in the equipment supplied and of purchase of the equipment by defendant from a third party. Defendant also filed an amended counterclaim alleging that plaintiff had warranted that the equipment was fit for its ordinary purpose but it was actually defective. Defendant claimed setoff against the alleged indebtedness and damages. After trial by the court without a jury, judgment for $3052.50 was entered in favor of plaintiff on the complaint and for plaintiff on defendant's counterclaim. Defendant appeals.

In this court, defendant urges that the trial court erroneously determined that plaintiff had contracted with an agent of defendant for sale of the equipment; plaintiff failed to introduce competent evidence to prove indebtedness from defendant and defendant is entitled to recover damages on its counterclaim. The brief of plaintiff (appellee) lacks a statement of "Points and Authorities" and therefore fails to comply with Supreme Court Rule 341(e)(5). (Ill. Rev. Stat. 1975, ch. 110A, par. 341(e)(5).) However, it appears that plaintiff contends that defendant ratified the transaction with knowledge of the facts; the proof is ample to show liability of defendant to pay for the equipment and to prove an account stated; finally defendant failed to prove that the equipment furnished was not fit for the ordinary purpose for which it was sold. Since the issues on the complaint and on the counterclaim are logically divisible, we will consider them separately.

I.

Plaintiff is in the business of manufacturing and selling water softening equipment. It is undisputed that during the latter part of 1972 plaintiff sold and delivered three water conditioning systems for installation in three apartment buildings known as 8801-09-15 Golf Road in Niles, Illinois. At the same time, plaintiff sold a chlorination system and filter for installation at the Blue Ribbon Stables in Deerfield, Illinois. In this transaction, plaintiff dealt exclusively with William Garbell, who was associated in some manner with Builder Plumbing Company. Apparently defendant had retained the services of Garbell to install the water systems in the three apartment buildings and at the stables. The Builder Company appears to have been defunct at the time of trial.

The testimony in behalf of defendant is that Builder and Garbell were hired to install the water softening systems but that Garbell was never expressly authorized to enter into contracts for defendant and was never an employee or agent of defendant. On October 10, 1972, plaintiff issued three written proposals for all of the equipment, all signed by Garbell. Those pertaining to the Blue Ribbon Stables were signed "For M. Suson Enterprises by Wm. Garbell" and the one for the apartment buildings was signed by Garbell above the descriptive designation "By owners or owner's agent." The total amount of the proposals for the stables was $610. The price shown for the equipment for the apartment buildings was $1776.25 each, being a total of $5328.75, grand total $5938.75. It is undenied that the equipment in question was all furnished by plaintiff and was delivered to the three apartment buildings and to the stables in accordance with these proposals and there installed.

Upon completion of installation, plaintiff sent four invoices to defendant at 8801 Golf Road, in Niles. These invoices pertained to the Blue Ribbon Stables and to each to the three apartment buildings. The invoices showed the date of furnishing the equipment, a short description of the equipment and the price corresponding to the amounts contained in the proposals as above specified. There is no evidence of any bill or invoice of any kind having been sent by plaintiff to Garbell or to the Builder Company.

On March 23, 1973, a letter was sent by plaintiff to defendant itemizing each of the four amounts due and the total thereof, as above shown. The letter stated that prior requests had been ignored and that the account was 4 to 6 months overdue. It suggested immediate attention to the matter and ended, "Please contact us directly should you have any questions." Defendant has objected to the introduction of a copy of this letter as will be later shown.

About June 15, 1973, defendant sent its check to plaintiff in the amount of $2886.25. The check had a voucher stub appended to be detached and retained. It is admitted that defendant caused this voucher stub and check to be prepared and sent. The designation on the stub shows payment for the stables installation of $610 and for one of the apartment buildings of $1776.25, both marked "In Full" and payment pertaining to another of the apartment buildings of $500 marked "A/C." Morris Suson, principal officer, director and major stockholder in defendant, admitted preparation and sending of the check and stub. He testified that he received no invoices from plaintiff but that he did receive bills from Builder Company and that, "We paid our bills." He also testified that the amount of the check which he sent to plaintiff, "was the balance due to Builder * * *."

Plaintiff also produced a series of four ledger cards which appear upon examination to be carbon copies of all of the typewritten matter upon the four invoices above described. These ledger cards thus show the identical figures reflected in the invoices. They also reflect original entries by typewriter showing the payments on account represented by the check stub as above set forth. Objection by defendant to these ledger sheets will be later considered.

• 1 The first issue for determination is the problem of agency. There is no evidence of express authority ever having been granted by defendant to Garbell for the purchase of this equipment. The parties stipulated that the equipment in question was furnished by plaintiff and delivered to and installed upon the property.

In our opinion, the record here shows proof of ratification of the transaction by defendant. The pertinent legal authorities are clear that "[r]atification need not be express; it may be implied from the conduct of the parties." In addition, Illinois cases are clear that retaining the benefits of a transaction with full knowledge of all material facts is tantamount to ratification. These principles are stated and supported by ample citation of legal authorities in Mueller & Sons, Inc. v. Northern Illinois Gas Co. (1973), 12 Ill. App.3d 362, 365, 299 N.E.2d 601.

In urging lack of ratification, defendant relies upon the testimony of Morris Suson in which he denied that defendant ever received invoices from plaintiff. The witness also stated that he received bills from Builder Company which were paid. His testimony was that the check and stub which he sent plaintiff was the amount due to Builder. Even though no objection was interposed to this testimony, it is hardly factual and is a conclusion on the part of the witness. Also, there is no contract, check stub, ledger book or any document of any kind to support the theory that defendant was making the payment received by plaintiff as payment to the contractor. The record is certain that these facts were never communicated by defendant to plaintiff by letter or in any other manner.

Generally speaking, the existence of ratification of the act of another person which may be depended upon to create the relationship of principal and agent is an issue of fact. The record here reflects an issue of credibility of the witnesses as regards the conflicting positions taken by the parties. Citations are not necessary to show that we may not set aside the result reached by the trial court on this ...


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