APPEAL from the Circuit Court of Cook County; the Hon. LOUIS
J. HYDE, Judge, presiding.
MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Royal L. Hall (defendant) appeals a $3,380.55 judgment for General Foods Corporation (plaintiff) entered by the trial court after a bench trial. The issues to be considered on appeal are: (i) who bears the burden of proof as to a commercially reasonable sale; and (ii) did the trial court abuse its discretion in granting the $3,380.55 judgment against defendant.
Plaintiff's complaint alleged defendant owed plaintiff $4,541.25 on a promissory note. On May 28, 1971, defendant signed a promissory note for $6,000 payable to General Foods Calumet Credit Union, which provided that the $6,000 debt was "* * * secured by a security agreement, of even date herewith, given to General Foods Calumet Credit Union, on personal property situated in _________________________" No description of the secured property was given in the note. On December 10, 1973, the promissory note and all interest of General Foods Calumet Credit Union in the note was assigned to plaintiff. On January 31, 1974, plaintiff filed a complaint against defendant claiming that after March 30, 1973, defendant neglected, failed, and refused to make payments upon the note, notwithstanding plaintiff's demands; and that defendant owed $4,541.25 to plaintiff. The note and assignment were attached to the complaint.
On October 7, 1974, defendant filed an answer to plaintiff's complaint admitting all of plaintiff's allegations concerning the making of the note, but defendant denied owing plaintiff $4,541.25. On January 29, 1975, both plaintiff and defendant appeared in the trial court with their attorneys. The only pleadings before the court were those of January 31, 1974, and October 7, 1974. No amendment to the pleadings was offered changing the prayer for relief from the original request for $4,541.25. No additional facts were pleaded or offered into evidence. Plaintiff's statement of the case to the trial court was as follows:
"The defendant borrowed money from my client, rather the predecessor to my client. And [sic] neglected, failed and refused to pay upon it. There was a judgment entered against him and thereafter we repossessed the securities [sic] given which was an automobile pursuant to the possession of the security agreement. And title sale was held at the notice of the defendant, the surrogation [sic] were applied to the obligation. We seek to enforce the balance due. And the defendant suggested that there has been an error someplace. Where or how I do not know."
Defendant's statement differed from the above:
"Your Honor, this is a suit for deficiency. There has been no judgment enetered [sic]. This is a suit for deficiency balanced after repossession.
The burden is on the plaintiff to prove that it's complied with the Uniform Commercial Code. And that's what we're here for today."
After some discussion off the record, the parties stipulated that the only matter in contention was whether the notice of the sale of defendant's collateral was adequate. A copy of the notice of sale was included in the record:
"NOTICE OF ENFORCEMENT OF SECURITY AGREEMENT
Pursuant to sections 9-504 and 9-505 of the Uniform Commercial Code of Illinois, you are hereby notified that the following described collateral:
ONE 1971 BUICK - 2 DOOR SPORT COUPE - SERIAL # 484371H447481 constituting security under the Security Agreement dated May 28, 1971, made by ROYAL L. HALL, Debtor, and GENERAL FOODS CALUMET CREDIT UNION, a corporation, Secured Party. [sic] will be sold at public sale to be held at:
100 N. La Salle Street Suite 914 Chicago, Illinois 60602 on FRIDAY FEBRUARY 15, 1974 at 2 p.m."
Defendant, called by plaintiff, the only witness to testify, stated he arrived at the specified location on February 15, 1974, at the time indicated on the notice, but the Buick was not there, nor was a sale conducted at that place, and he was not given an opportunity to bid. ...