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Terminal-hudson of Ill. v. Goldblatt Bros.

OPINION FILED JULY 22, 1977.

TERMINAL-HUDSON OF ILLINOIS, INC., PLAINTIFF-APPELLANT,

v.

GOLDBLATT BROTHERS, INC., DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR L. DUNNE, Judge, presiding.

MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Plaintiff, Terminal-Hudson of Illinois, Inc., brought action in detinue against defendant, Goldblatt Brothers, Inc. Following a trial without jury, judgment was entered in favor of defendant. Plaintiff appeals. The issues are whether plaintiff has sufficiently identified the property allegedly detained to warrant recovery, and whether the judgment of the trial court is against the manifest weight of the evidence. We affirm.

On October 3, 1973, plaintiff filed the instant Complaint in Detinue on information and belief. It alleged that defendant detains from the plaintiff the goods and chattels of the plaintiff at four locations in Chicago, Illinois; namely, at: 4700 South Ashland Avenue, 333 South State Street, 443 East 34th Street, and 3311 West 26th Street. The goods and chattels are therein repeatedly set forth after each address, in identical words and figures, as follows:

"1 — American Optical Veropter 1 — American Optical Projector 1 — American Optical Stand & Chair 1 — Lensometer — miscellaneous manufacture; Approximately 250 pair assorted eyeglass frames; Patient's prescription records; Assorted office supplies; 1 — R.C. Allen adding machine; Assorted optical tools 1 — set sample lenses 2 — two-drawer filing cabinets;"

The listing for the latter three addresses each additionally included between the fourth and fifth items listed above:

"1 — American Optical Karotometer;"

The complaint further alleged that plaintiff is the lawful owner of said property valued at $100,000, and that defendant refused to deliver possession of the property when plaintiff made demand therefor on or about October 1, 1973. Plaintiff prayed judgment for possession of that property, the value of the property not delivered, and damages for its detention.

Defendant did not answer the complaint in detinue, but did, however, file a separate complaint against plaintiff for breach of the September 10 agreement. The two cases were initially consolidated but thereafter severed prior to trial of the detinue action. The breach of contract case is therefore not before us.

The following evidence was adduced at trial.

Plaintiff is in the business of operating concession optical departments in retail outlet stores. On September 10, 1971, plaintiff entered into a written agreement with defendant whereby plaintiff was given the right to operate optical departments in various retail department stores owned by defendant. The contract period commenced on October 1, 1971, and was to terminate on September 30, 1976. Paragraph 5 of the contract provides in pertinent part:

"TERMINAL agrees that it shall furnish all of the furniture, fixtures, equipment, inventory and supplies in connection with the operation of its departments. At the expiration of this agreement, whether by time or otherwise, all furniture and fixtures exclusive of refracting equipment, diagnostic instruments, tools, office furniture, and accessories, whether new, additional, substitute or replacement items of property so placed in GOLDBLATT'S optical departments, shall become the sole and exclusive property of GOLDBLATT with free and clear title to same without compensation being paid or owing to TERMINAL therefor. * * *."

Herman G. Buckley was called by plaintiff as an adverse witness and testified. He is general manager of defendant and held that position at the time the relationship between defendant and plaintiff commenced. He identified the September 10 contract, and it was admitted into evidence. In October 1973, he refused to allow plaintiff to remove equipment, but not cards, from three locations; the equipment retained was either being used by another optical company or was in storage; and at that time four of eight stores had been closed down. None of plaintiff's prescription cards was retained by defendant. However, there may be some available unknown to him. Plaintiff had purchased and paid for optical examination equipment from defendant prior to October 1971, for a price of $8900. About 50% of the equipment is still on the premises, and the remainder had been removed by plaintiff.

Michael Blend, plaintiff's supervisor, testified. On October 1, 1973, he went to the outlet at 4700 South Ashland Avenue. He loaded records and equipment from the optical department onto a dolly and proceeded to his truck. Two men who identified themselves as defendant's security personnel restrained him from removing the material. A man who identified himself as Mr. Fitzgerald, a manager of the store, was present, and the police were called. After the police arrived, the ...


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