Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Olken v. Olken

OPINION FILED MARCH 20, 1980.

MORTON Z. OLKEN, PLAINTIFF-APPELLEE,

v.

LEON D. OLKEN, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. SIDNEY A. JONES, Judge, presiding.

MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

Rehearing denied April 15, 1980.

• 1 Following a jury trial plaintiff, Morton Olken, was awarded $15,570.79, plus costs and "charges" based on a promissory note signed by his cousin Leon Olken, the defendant herein. Defendant appeals, contending that (1) the promissory note was incomplete when he signed it, and it was not completed within a reasonable time as a matter of law; that (2) the trial court erred in excluding the introduction of a transcript of testimony of a person who testified before a State administrative hearing; and that (3) certain written exhibits presented by plaintiff were improperly introduced into evidence. Plaintiff has not filed a brief, but this does not affect our disposition. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill.2d 128, 345 N.E.2d 493.

The instrument in question was a standard promissory note with blank spaces to be completed. The note recited the pertinent following information:

The remainder of the note contained the usual confession of judgment clause and then defendant's signature.

In mid-1973, plaintiff confessed judgment against defendant for $22,935.58, which included the principal amount of $15,570.79 plus interest and attorney's fees. Thereafter defendant successfully opened the judgment (Ill. Rev. Stat. 1973, ch. 110A, par. 276), and the matter was set for a jury trial.

At trial plaintiff, who had a prior conviction for Federal mail fraud and misdemeanor conviction for violating State law pertaining to the sale of insurance, explained the circumstances surrounding the execution of the promissory note. Plaintiff testified that he was an insurance agent and that he made a series of loans to defendant from 1960-1967. Plaintiff asserted that he made certain premium payments to insurance companies on behalf of defendant's used-car business; these loans totaled almost $10,000. In addition, plaintiff advanced several hundred dollars to defendant to pay a hotel bill. The final loans made to defendant involved monies to repay defendant's "juice loan" and $6,620 to purchase certain television sets. Plaintiff testified that it was the last transaction which occasioned his use of the promissory note for plaintiff's "protection." Therefore defendant signed the note in which the blank spaces were not completed, although plaintiff said the parties agreed that interest would be payable in the amount shown on the note. Plaintiff then gave defendant the money to buy the television sets which were later found to be stolen and seized by the authorities.

Plaintiff explained that defendant had only repaid $2,000 of the amount owed. In 1973 defendant issued three checks to plaintiff totaling $1,000. On two of these checks defendant had written that the checks were payment on his account due. Plaintiff then contacted an attorney who filled in the blank spaces on the note with plaintiff's name as payee, the amount of the note, the time repayment was due, and the rate of interest thereon. This action was then commenced.

Conversely, defendant testified that he had obtained several small loans from plaintiff but had paid all the money back. He recalled that he signed the promissory note, which did not have the spaces filled in, between 1958 and 1962 because he owed plaintiff about $1,000, and plaintiff wanted to be protected. Plaintiff later said the note had been lost. Defendant explained, however, that he gave plaintiff $1,000 in 1973 because he felt a moral obligation toward plaintiff. Defendant denied being a recipient of a "juice loan" or being involved with stolen television sets.

Defendant notes that the evidence irrefutably shows that the promissory note was not completed until mid-1973, 6 years after he purportedly signed it. In defendant's written motion for a directed verdict, which was incorporated by reference into his written post-trial motion, defendant asserted that the note was not completed within a reasonable time as a matter of law. Defendant repeats this contention relying on section 3-115(1) of the Uniform Commercial Code (Ill. Rev. Stat. 1973, ch. 26, par. 3-115) which reads:

"§ 3-115. Incomplete Instruments.

(1) When a paper whose contents at the time of signing show that it is intended to become an instrument is signed while still incomplete in any necessary respect it cannot be enforced until completed, but when it is completed in accordance with authority given it is effective as completed."

He also refers to the Code Comment which indicates that completion of the instrument must occur within a reasonable time unless a time limit is otherwise set. Ill. Ann. Stat., ch. 26, par. 3-115, Uniform Commercial Code Comment, at 67 (Smith-Hurd 1963).

Defendant now urges that before completion of the note in 1973 plaintiff's action would have been premised on an oral contract and it would have been barred by the 5-year limitation for enforcement of oral contracts. (Ill. Rev. Stat. 1973, ch. 83, par. 16.) Defendant asserts that his signature on the note did not add any degree of certainty to the "true state of the transaction," and the note cannot therefore be relied upon ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.