APPEAL from the Circuit Court of Cook County; the Hon. PAUL F.
ELWARD, Judge, presiding.
MR. JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:
At issue is whether the circuit court erred in concluding there was no genuine issue as to any material fact and whether granting the plaintiff summary judgment on the complaint and counterclaim was proper.
Defendant Timothy Sullivan has been a horse trainer and riding instructor for several years. In the spring of 1974 he met Lee Heller, the plaintiff's minor daughter, at a stable where she was riding. He began training a horse she owned and giving her riding lessons. Shortly thereafter, Lee told Sullivan that she was interested in looking for another horse.
In October 1974, Lee and Sullivan went to a farm in Maryland where among the horses for sale she saw one named Suru, which she liked. Sullivan told her that Suru's price was $7,500 and that she should talk to her parents about it.
After Lee returned from Maryland, Sullivan told the plaintiff he considered the horse suitable for Lee. Plaintiff asked Sullivan whether the horse had papers and Sullivan told him that it did. Both the plaintiff and Sullivan understood that, as applied to Suru, "papers" meant the Certificate of Foal Registration issued by the Jockey Club of New York (Certificate). A Certificate identifies a horse by coloring and marking and has a place to enter transfers of ownership.
In November 1974, the plaintiff's wife told Sullivan that her daughter liked Suru and that she and the plaintiff wanted to buy the horse. Sullivan told Mrs. Heller that the horse had papers, it was healthy and its price was $7,500. A short time later, Mrs. Heller gave the defendant a check for $7,500 and the defendant promised to deliver the horse in Chicago. He did so later that month.
When Lee first saw the horse in Chicago she asked Sullivan about the papers and Sullivan told her the previous owner had promised to send them. Sullivan discussed the horse's papers with the plaintiff or his wife on numerous occasions. Sullivan repeatedly responded that he was trying to get the papers and that the former owner, Billy Boyce, had said he would send them.
From the time Suru arrived in Chicago the plaintiff owned and controlled the horse. For approximately the next 9 months Lee enjoyed the use of the horse, rode it and received riding lessons on it from Sullivan. During this time Sullivan trained and cared for the horse and entered it in horse shows, but the plaintiff refused to pay Sullivan for this work and his expenses, despite Sullivan's demands.
The plaintiff's attorney sent Sullivan a letter dated July 31, 1975, requesting that both a bill of sale from the previous owner and the Certificate be delivered to the plaintiff no later than August 15. In response to that letter Sullivan sent the plaintiff a bill of sale on Sullivan's stationery. At this time, the plaintiff first became aware that Sullivan had purchased the horse himself and then sold it to the plaintiff. The plaintiff returned the bill of sale to Sullivan, informing him it was not satisfactory. Sullivan subsequently sent the bill of sale back to the plaintiff. When the documents which his attorney had requested were not forthcoming, the plaintiff on August 18 sent Sullivan a letter reading in part:
"On account of your failure to deliver to me the accepted proof of ownership, I hereby revoke my acceptance of the delivery of the chestnut mare Suru. Any further expenses in the maintenance of the horse are your responsibility. The horse is available to be picked up by you upon my receipt of a cashier's or certified check for $7,500 plus the expenses incurred by me in the maintenance and care of the horse. I do not intend hereby to waive any of my rights under the Uniform Commercial Code, including the right to resell the horse."
Sullivan testified in his deposition that he persistently but unsuccessfully had sought to secure the Certificate from Boyce, the previous owner of Suru. According to this testimony, shortly after this action was filed, Sullivan received a Certificate for Suru by mail from Boyce in late August or early September 1975. The Certificate is part of the record.
The complaint in this case, filed on August 25, 1975, alleged the plaintiff revoked the acceptance of the horse on or about August 18, 1975, and sought as damages the purchase price of the horse and the cost of caring for the horse after the plaintiff rejected the acceptance. Sullivan denied the majority of the plaintiff's allegations and counterclaimed for payments for amounts Sullivan claimed were due him for the care and services he provided, and expenses he incurred in connection with, the horse. The plaintiff answered the counterclaim by stating that any care and services Sullivan gave the horse were given at the request of the plaintiff's minor daughter, Lee Heller, and not at the request, or with the agreement, of the plaintiff.
The plaintiff filed a motion for partial summary judgment seeking recovery of the purchase price of Suru, costs for maintaining the horse after August 18, 1975, and dismissal of the defendant's counterclaim. The plaintiff supported his summary judgment motion with the parties' pleadings and depositions. The circuit court entered summary judgment against Sullivan for $7,500, and in favor of the plaintiff on Sullivan's counterclaim.
The plaintiff then filed another motion for summary judgment seeking reimbursement for his expenses in maintaining and showing Suru. This motion was supported by the plaintiff's affidavit and exhibits. After Sullivan filed an answer to the motion for summary judgment, the circuit court entered a second summary judgment in favor of the plaintiff for an ...