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Hemken v. First Nat'l Bk. of Litchfield

OPINION FILED SEPTEMBER 7, 1979.

WILLARD HEMKEN, PLAINTIFF-APPELLANT,

v.

THE FIRST NATIONAL BANK OF LITCHFIELD ET AL., DEFENDANTS. — (MARILYN HEMKEN, PLAINTIFF; WERNER MOTOR COMPANY, DEFENDANT-APPELLEE.)



APPEAL from the Circuit Court of Sangamon County; the Hon. SIMON L. FRIEDMAN, Judge, presiding.

MR. JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

Rehearing denied October 5, 1979.

A repossessed truck tractor.

No notice of intended sale.

Valid sale? No.

We reverse and remand.

Willard and Marilyn Hemken brought suit to recover damages for the failure of the First National Bank of Litchfield and Werner Motor Company to provide them with a notice of the intended sale of a repossessed 1971 GMC Astro tractor. The trial court granted the bank's motion to dismiss as to it and the case proceeded to a bench trial where a directed verdict was entered in favor of defendant, Werner Motor Company. Only the propriety of the entry of that directed verdict is questioned in this matter, and only Mr. Hemken appeals.

The preliminary facts are not disputed. Hemken purchased a used tractor from the defendant on March 8, 1974, for a total deferred payment price of $18,280.52. This same vehicle was refinanced in May 1975 for a deferred payment price of $11,731.60. Defendant, Werner Motor Company, then assigned the contract to the First National Bank of Litchfield with full recourse.

Sometime during August 1976 plaintiff was in default on the contract which then had an outstanding balance of $7,389.22. The bank made demand for the collateral and then contacted the defendant who picked up the tractor and paid the total amount due on the contract.

The repossessed tractor was later sold to another dealer for the sum of $7,150. Jesse Werner (president of defendant) testified that the sale was a "wholesale" transaction and that the retail value of the tractor would have been approximately $7,500. He explained that the reason it was listed as a wholesale transaction was because the company's vice president did not receive a commission when he sold a truck. Thus, when such a sale was made, it was listed as a wholesale transaction for the benefit of the bookkeeping department to indicate that no commission was due a salesman. Therefore, if this tractor had been sold for its retail value of $7,500, a commission of approximately $400 would have been paid.

It is undisputed that no notice of intent to sell was sent to plaintiff prior to the sale of this tractor. Following the repossession, plaintiff did receive a letter from the bank notifying him of the bank's intent to apply for a repossession title. After receipt of this letter, Willard Hemken contacted a friend, Harry Kennedy, to ascertain what would be required in order to file an affidavit of defense which had been referred to in the bank's letter. Hemken testified that he then contacted the defendant between September 28 and October 4, 1976, and informed it that he wished to pay off the indebtedness. According to Hemken, he was told that the tractor had been sold. However, defendant's records indicate that the tractor was not sold until October 15, 1976.

When he was contacted by the plaintiff, Harry Kennedy testified that he responded that he would take care of whatever was necessary. If the plaintiff had been able to get possession of the truck, there was no question that Kennedy would have provided the requisite amount of money. He knew that the balance on the contract was approximately $7,100 and he said he would have been willing to loan that amount to Hemken if it were necessary.

In an attempt to show the damages suffered by the plaintiff as a result of the repossession sale, he introduced an equipment lease between Willard Hemken and Curry Ice and Coal, Inc. Hemken, who hauled pursuant to this lease from August 1975 until August 1976, would receive the sum of 85% of the gross weekly income. Trip tickets which showed Hemken's income from the lease were also introduced into evidence. However, Hemken was required to pay the costs of fuel, upkeep, and repairs on the vehicle, and when his counsel asked for the average of these expenses, defendant's objection to the question was sustained.

• 1 After considering this evidence, the trial court granted the defendant's motion for judgment. In ruling on a motion for a directed verdict at the close of the plaintiff's case in a bench trial, the court is to weigh the evidence and pass on the credibility of the witness. The court should consider the weight and quality of all the evidence, including that which is favorable to the defendant. And the trial court's decision will not be reversed unless it is contrary ...


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