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Oh Boy Grocers v. South East Food & Liquor

OPINION FILED DECEMBER 4, 1979.

OH BOY GROCERS, PLAINTIFF AND COUNTERDEFENDANT-APPELLEE,

v.

SOUTH EAST FOOD & LIQUOR, INC., DEFENDANT AND COUNTERPLAINTIFF-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. JOSEPH T. LAVORCI, Judge, presiding.

MR. JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:

In an action seeking reimbursement for a dishonored check tendered as payment for goods by defendant, counterclaimant South East Food & Liquor, Inc. (hereinafter South East) which plaintiff, counterdefendant Oh Boy Grocers, a Division of Holleb & Co., Inc. (hereinafter "Oh Boy") alleges were delivered and accepted and which South East denied, the court sitting without a jury entered judgment for Oh Boy in the full amount of the dishonored check and entered judgment in favor of Oh Boy on South East's counterclaim, from which South East appeals.

South East raises five issues for review, including whether: it was given a fair and impartial trial; the findings were against the manifest weight of the evidence; closing arguments were proper; leave to present the counterclaim was properly denied; and leave to reopen the case was properly denied.

For reasons hereinafter stated the cause is affirmed in part and reversed in part and remanded for further proceedings.

Oh Boy is a wholesale grocery with offices at 3223 S. Western Avenue, Chicago, and a warehouse in Bensenville, Illinois. South East operated a retail food and liquor establishment at 6820 S. Stony Island Avenue in Chicago. On or about June 17, 1975, South East placed an order with Oh Boy for certain goods which were allegedly delivered to South East's store on June 20. The goods were unloaded under the supervision of Nayef Sweis, one of the owners of the store, with the assistance of some of his employees. One of the principal disputes in the facts arises at this point with respect to whether South East through Sweis refused the order and had the goods returned to the truck, or the goods remained in the store and the truck returned to the warehouse empty.

Oh Boy's truck driver, Ronald Serino, an employee of 17 years, testified that when he drove the goods to South East's establishment he was to receive two checks: one a certified check for an order previously delivered, and the other a check for the order then being delivered. Before unloading he received the certified check and then went to the rear of the store together with Samiah Sweis, Nayef's brother, and Nayef, and a few of South East's employees. It took five or six of them four hours to unload the truck. The two Sweis brothers counted the "pieces" as the truck was being unloaded, marking down every 25 items on a piece of paper. After the truck was unloaded, he presented the cargo manifest (invoice) which the store owner or his agent must sign stating that he received the amount of pieces shown. The Sweis brothers complained that they wanted merchandise that was marked "out" on the manifest and not delivered, although the tally sheet totaled by Nayef Sweis and his own tally sheet came to 868 pieces as set forth in the manifest. Nayef Sweis signed the manifest in his presence, and he then received a check signed by Samiah Sweis in payment of the delivery, in the amount of $7501.80, dated June 20, 1975, and payable to Oh Boy. Serino thereafter drove his truck back to the warehouse in Bensenville and turned in the check together with his collection which went to the Oh Boy cashier.

On cross-examination Serino testified that everything charged and billed for on the manifest was delivered. Items which are not delivered are physically marked "out" on the invoice. When deliveries were made, a conveyor system consisting of 10' roller sections was set up leading from the trailer going to the back room of the store, where the items or pieces were stored. Before the manifest or invoice and the check in payment thereof were signed, he had to call his office because the Sweis brothers would not sign a check or return the merchandise. His office instructed him to call the police, which he did. An unidentified sergeant and police officer arrived; however, the latter left. He showed the sergeant the goods in the store and the sergeant told the Sweis brothers either to pay him or let him take the goods out.

At this point in the proceedings, the parties stipulated that the check tendered in payment of the goods delivered on June 20 was returned unpaid and that no payment was ever received by Oh Boy for the delivery allegedly made. Oh Boy then rested its case. South East's motion to dismiss the case because Oh Boy had not established the delivery of the goods was denied.

Nayef Sweis was then called as a witness on behalf of South East. He testified that he was the owner of the store on June 20, 1975, and purchased groceries from Oh Boy. A delivery of goods was made that day by Oh Boy, and they were removed from the truck piece by piece. He counted the pieces being removed until he reached 625. Looking at the invoice he saw he was being charged with 868 pieces, but only eight or nine boxes were left on the truck when he reached the count of 625. He told the truck driver about the difference, who advised him to call the sales manager at Oh Boy, one Tony Mazzocchi, which he did. Mazzocchi told him to accept the order and whatever shortages were found would be replaced the next day, but Sweis refused. After the phone conversation he and the truck driver began checking the 600 pieces on the floor so that he could ascertain what was "short" on the order but after going through this procedure for a time, he could not complete it and he told the truck driver to put all of the items back on the truck and bring him the exact total pieces which he would then accept. He gave orders to his stock boys to return the goods into the truck, which they completed in his presence. He thereafter locked the back door to the store. He then went to his bank to put a stop on the certified check he had given the truck driver because Oh Boy still owed him merchandise which had not been delivered on the previous order. He called his brother Samiah and asked him to come to the store while he was gone. He did not sign a second check for Oh Boy, nor the manifest, nor did he accept the order or authorize anyone else to sign a check in payment therefor. While he was gone from the store his brother was forced to write a check to Oh Boy under coercion by police.

On cross-examination he testified that he was the president of the corporate defendant at the time of the incident. His brother Samiah had been working for him at the store and, until May 30, 1975, had been authorized to sign checks. Samiah's authorization was cancelled after that date and Oh Boy was notified of that fact. Samiah did in fact sign checks on two or more occasions between May 30 and June 20, but not after that date. Although he knew that the order for which the first certified check was given had been short, he nevertheless paid Oh Boy the full amount of the order. He denied having seen his brother sign the check in payment for the goods delivered on June 20. The Oh Boy truck drove away that day as full as it had been when it arrived, everything having been put back into the truck and no boxes having been opened or merchandise taken out of the boxes and put on the shelves in his store.

South East called Samiah Sweis as a witness, who testified that on June 20, 1975, he came down to the store at the telephone request of his brother, who then left to go to the bank. Serino was at the store at the time. A police sergeant thereafter came and told him to sign a check, at which time he was pointing his pistol. The sergeant said "you have to give him the check now," although he asked to wait until his brother came. Half the goods that had been delivered were in the back of the store, and the other half were back in the truck. He signed both the check and the manifest because the policeman told him to sign them, although he did not know whether or not the order had been delivered or was complete. He was not authorized to sign checks for the store at that time.

On cross-examination he testified that the policeman threatened him in the way he talked. At the time the policeman came there were men in the store unloading boxes and shelving merchandise, but not the new stock, only that which had been previously delivered to the store. Serino did not threaten him, and the police officer did not say that he would be arrested if he failed to comply. The policeman held his hand on his pistol when he spoke to him.

On redirect examination he testified that the goods were removed from the store and pushed outside to the truck in the alley. Some 10 or 15 pieces were lying in the alley near the truck when he looked in back, but nothing was left in the back of the store when Serino departed. His brother was not back at the time the truck driver left the store. He signed both the manifest and the check, although the signature that he used was different on the check because he signed it under duress. The merchandise had already been placed in the truck at the time he gave the check to Serino.

Alexander Price was called as a witness by South East and testified that he worked for South East from time to time. He was asked to help unload the truck containing canned goods and boxes on June 20. As the goods were unloaded, the boss of the store began counting until a misunderstanding between him and the driver developed and Price and others helping were later instructed to return the goods to the truck, which they did. Everything they took off they put back on. On cross-examination he testified that he was not a regular employee but lived near the store, of which he was also a regular patron. He was on social security disability. He could not remember the color of the truck or the name on its side, having seen only its back end. A month before the trial he was contacted by ...


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