APPEAL from the Circuit Court of Winnebago County; the Hon.
JOHN S. GHENT, JR., Judge, presiding.
MR. JUSTICE DIXON DELIVERED THE OPINION OF THE COURT:
This action was brought by plaintiff, Mayor's Jewelers of Ft. Lauderdale, Inc., to recover two rings in the possession of defendants. The Circuit Court of Winnebago County gave judgment for plaintiff.
Donald Levinson was about to have a 25th wedding anniversary. He asked plaintiff to find a diamond of exactly 2.5 carat so that he could present it to his wife Lorraine on the occasion. Plaintiff found what it believed would meet Levinson's requirement and on July 12, 1972, mailed the diamond from Florida to Donald Levinson in Rockford, Illinois, for his approval. Accompanying the ring was a conditional sales contract signed by the seller but not by Donald Levinson, also a note stating, "I know your lovely wife will be thrilled with her token of your sentiment on the great occasion of your 25th anniversary."
The conditional sales contract sets forth in bold print:
THIS IS A CONDITIONAL SALES CONTRACT UNDER WHICH MAYOR'S RETAINS TITLE TO THE ABOVE DESCRIBED GOODS UNTIL THEY ARE PAID FOR IN FULL."
After receipt of the ring with the accompanying contract Donald Levinson on July 15, 1972, telephoned the plaintiff stating he approved the ring and would be in to pay for it in a few weeks. The ring was presented to Lorraine Levinson on July 15, 1972.
On October 28, 1972, Levinson appeared at Mayor's Store in Florida and signed his name to the store's copy of the contract. On the same date Levinson also purchased a gold wedding band for $800, signed a conditional sales contract for it and paid $1,000 on his account at Mayor's leaving a balance of $7800 to be paid plus finance charges.
No further payments were ever made by Levinson who was nearing bankruptcy. Levinson then gave a promissory note to defendant Phillip B. Johnson in amount of $10,000 for fees for representing Levinson in bankruptcy proceedings. On March 14, 1973, Lorraine Levinson pledged both rings to attorney Johnson to secure payment of the $10,000 note.
Plaintiff was scheduled by Levinson in the bankruptcy proceedings as a general unsecured creditor and after hearing this plaintiff commenced this action seeking return of the rings. The trial court entered summary judgment in favor of Mayor's giving it possession of both rings. Defendants do not on appeal challenge the correctness of the judgment as it pertains to the wedding band but do contend that because Levinson did not sign the contract until October 28, 1972, ownership passed to him on receipt of the ring on July 15, 1972, free of any security interest.
The prefatory portion of the "title" section of the Uniform Commercial Code (Ill. Rev. Stat. 1973, ch. 26, par. 2-401) rejects the "title" concept or approach where other Code provisions can be utilized. Each provision of article 2 on sales with regards to the rights, obligations and remedies of the seller, the buyer, purchasers or other third parties applies irrespective of title to the goods except where the provision refers to such title. Section 2-401(1) provides in pertinent part.
"* * * Any retention or reservation by the seller of the title (property) in goods shipped or delivered to the buyer is limited in effect to a reservation of a security interest."
The Code defines "security interest" (section 1-201 (37)) in pertinent part as follows:
`Security interest' means an interest in personal property or fixtures which secures payment or ...