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Strom Int'l v. Spar Warehouse & Distributors

OPINION FILED MARCH 9, 1979.

STROM INTERNATIONAL, LTD., PLAINTIFF-APPELLANT,

v.

SPAR WAREHOUSE AND DISTRIBUTORS, INC., DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. PAUL F. ELWARD, Judge, presiding.

MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:

Plaintiff filed a complaint against defendant-warehouseman claiming damaged and lost goods as a result of defendant's negligence. The trial court granted defendant's motion for a summary judgment. The sole issue on appeal is whether the trial court ruled correctly in granting the summary judgment. We affirm.

The record in this case includes the pleadings, exhibits, motions and attached affidavits. The record indicates that plaintiff stored certain goods, including liquor and furniture, with defendant-warehouseman. Defendant issued various warehouse receipts establishing the storage agreements between the parties. The receipts contained a provision in the lower right hand corner of the front page stating that:

"This is to certify that we have received the goods listed hereon in apparent good order, except as noted hereon * * * subject to all terms and conditions herein and on the reverse hereof." (Emphasis added.)

This provision was in print smaller than the print on the rest of the front page. The reverse side of the receipts contained a provision under the heading "LIMITATION OF DAMAGES AND CLAIMS" that:

"(b) Claims by the depositor must be presented in writing within a reasonable time, and in no event longer than 60 days after delivery of the goods. No action may be maintained by the depositor against the warehouseman for loss or damage to goods covered hereunder unless commenced within nine months next after date of delivery by the warehouseman." (Emphasis added.)

Sometime during the bailment, plaintiff discovered that goods which it stored with defendant were damaged. On approximately February 1, 1974, plaintiff's president, David Strom, complained to defendant about the damages. Upon receiving no satisfaction from defendant, he informally contacted the Illinois Department of Agriculture's Bureau of Warehouses (Department of Agriculture) to report the damages and to request an inspection. Lawrence Kaplan, of the Department of Agriculture, arranged for a meeting with Strom and defendant to inspect the stored goods. After the inspection, Kaplan reported the damaged goods to both parties.

On January 31, 1975, defendant delivered the last of the goods to plaintiff. Since he had not received any satisfaction up to this point, Strom filed a formal complaint with the Department of Agriculture on February 10, 1975. The complaint stated that goods were both damaged and lost.

Plaintiff then filed a complaint in the Circuit Court of Cook County on May 6, 1977. It claimed that its goods had been either lost or damaged through defendant's negligence and requested damages.

A supplemental record was filed four months before oral arguments in the present appeal. The record includes two letters which were apparently written by plaintiff's attorney, Irving Faber. One of the letters dated October 21, 1975, and addressed to Strom, stated that Faber had contacted defendant's agent, Phil Schiffman, but that he did not receive any satisfaction from him. The letter was unsigned, although Faber's name was typed at the bottom. The other letter, dated June 2, 1976, and addressed to Schiffman, stated that as was discussed in a previous meeting between the parties, plaintiff intended to proceed through the Secretary of State's office or to have defendant buy certain of the goods and resell them to available markets. This letter was also unsigned, although Faber's name again was typed at the bottom of the letter. These letters became part of the record in this case.

OPINION

A trial court should grant a motion for summary judgment if the pleadings, depositions, admissions and affidavits "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Ill. Rev. Stat. 1975, ch. 110, par. 57. See Manahan v. Daily News-Tribune (1977), 50 Ill. App.3d 9, 365 N.E.2d 1045.) In reviewing the trial court's determination, we must consider all grounds urged and all facts presented in the trial court. Marshall v City of Chicago Heights (1978), 59 Ill. App.3d 986, 376 N.E.2d 657.

In its briefs, plaintiff argues that the trial court erred in granting the motion for summary judgment because the following material issues of fact existed: (1) Whether the nine-month claim limitation was reasonable; (2) whether the nine-month claim limitation was part of the agreement between plaintiff and defendant; and (3) whether defendant was estopped from asserting the nine-month limitation. This argument was not raised before the trial court and under the waiver rules we need not consider it. (Witek v. Leisure Technology Midwest, Inc. (1976), 39 Ill. App.3d 637, 350 N.E.2d 242.) Nevertheless, we will comment on this argument after considering plaintiff's argument that the filing of the complaint with the Department of Agriculture tolled the operation of the nine-month limitation clause.

The sole argument which plaintiff urged before the trial court and also urges here on appeal is that its filing of a complaint with the Department of Agriculture tolled the operation of the nine-month limitation clause. According to the limitation clause, an action against defendant for loss or damage to goods covered by the storage agreement must be commenced within nine months after the date of delivery by the warehouseman. Defendant delivered the last of plaintiff's goods on January 31, 1975. On February 10, plaintiff filed its ...


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